Melendres v. Arpaio #1583 Nov 20 2015 Transcript - Closing Argument

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres,

et al.,
Plaintiffs,
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vs.
Joseph M. Arpaio, et al.,

Defendants.
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Court Reporter:
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Phoenix, Arizona
November 20, 2015
9:01 a.m.
(Evidentiary Hearing Day 21, Pages 4581-4820)
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No. CV 07-2513-PHX-GMS
BEFORE THE HONORABLE G. MURRAY SNOW
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REPORTER'S TRANSCRIPT OF PROCEEDINGS
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Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 1 of 240
Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription
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Melendres v. Arpaio, 11/20/15 Evidentiary Hearing
4582
A P P E A R A N C E S
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For the Plaintiffs:

American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Cecillia D. Wang, Esq.
39 Drumm Street
San Francisco, California 94111
American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Andre Segura, Esq.
125 Broad Street, 18th Floor
New York, New York 10004
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American Civil Liberties Union of Arizona

By: Daniel J. Pochoda, Esq.
P.O. Box 17148
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Covington & Burling, LLP

By: Stanley Young, Esq.
By: Michelle L. Morin, Esq.
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
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University of California Irvine School of Law

Immigrants' Rights Clinic
By: Anne Lai, Esq.
401 E. Peltrason Drive, Suite 3500
Irvine, California 92697
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For the Defendant Joseph M. Arpaio and Maricopa County

Sheriff's Office:
Jones, Skelton & Hochuli, PLC
By: A. Melvin McDonald, Jr., Esq.
By: John T. Masterson, Esq.
By: Joseph T. Popolizio, Esq.
2901 N. Central Avenue, Suite 800
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For the Defendant Maricopa County:

Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
SGA Corporate Center
16100 N. 7th Street, Suite 140
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A P P E A R A N C E S
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For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights Division
By: Paul Killebrew, Esq.
950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530
U.S. Department of Justice - Civil Rights Division

By: Cynthia Coe, Esq.
By: Maureen Johnston, Esq.
601 D. Street NW, #5011
Washington, D.C. 20004
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For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP
By: M. Craig Murdy, Esq.
2929 N. Central Avenue, Suite 1700
For Lieutenant Joseph Sousa:
David Eisenberg, PLC
By: David Eisenberg, Esq.
2702 N. 3rd Street, Suite 4003
Also present:
Sheriff Joseph M. Arpaio
Executive Chief Brian Sands
Chief Deputy Gerard Sheridan
Lieutenant Joseph Sousa
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I N D E X
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Witness:
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E X H I B I T S
No.
Description
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M I S C E L L A N E O U S
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Argument
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By
By
By
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By
By
By
By
By
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Mr.
Ms.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Ms.
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Young
Wang
Killebrew
Masterson
Murdy
Walker
Masterson
Young
Wang
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Admitted
(None)
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Page
(None)
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Page
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P R O C E E D I N G S
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This is civil case number 07-2513,
MS. WANG:
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Good morning, Your Honor.
Cecillia Wang
THE COURT:
Good morning.
MR. YOUNG:
Stanley Young
THE COURT:
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Good morning.
MR. POCHODA:
Good morning.
Dan Pochoda from the ACLU
of Arizona for plaintiffs.
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THE COURT:
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MS. LAI:
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Good morning.
09:02:11
Your Honor, Anne Lai for plaintiffs.
THE COURT:
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Good morning.
MR. KILLEBREW:
Paul
Killebrew, Cynthia Coe, and Maureen Johnston for the United
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States.
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THE COURT:
09:02:20
Good morning.
MR. MASTERSON:
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Good morning, Judge.
John Masterson
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and Joe Popolizio for Sheriff Arpaio and the alleged
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contemnors, and we have Holly McGee with us.
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09:02:03
and Michelle Morin, Covington & Burling, for plaintiffs.
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09:01:51
and Andre Segura of the ACLU for plaintiffs.
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THE CLERK:
Counsel, please announce your appearances.
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Please be seated.
Melendres, et al., v. Arpaio, et al., on for oral argument.
THE COURT:
THE COURT:
Good morning.
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MR. WALKER:
on behalf of Maricopa County.
THE COURT:
Mel McDonald
THE COURT:
Good morning.
MR. MURDY:
09:02:40
Craig Murdy on
behalf of retired Executive Chief Brian Sands.

THE COURT:
Good morning.
MR. EISENBERG:
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making a special appearance for Sheriff Joe Arpaio.
Good morning.
MR. McDONALD:
Richard Walker
David
Eisenberg, specially appearing on behalf of Lieutenant Sousa.

THE COURT:
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Good morning.
Is that everybody?
I just want to take care of a few matters before we
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get started and make sure I understand things.
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had a telephonic conference in which I invited the parties, for
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the most part, if they could answer any of the questions that
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I'd filed on Wednesday today, that would be appreciated, but I
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authorized you to file any answers in writing up to two weeks
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after today, post-oral argument.
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the record.
I'm just going to put that on
09:03:29
conversation, asked me to identify any excerpts in the record
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that I was considering, or was aware that I was considering, so
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the parties could address them.
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and position papers filed by the parties that went up -- that
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09:03:11
Mr. Murdy, in that argument, or in the course of the
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Yesterday we
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09:02:54
I identified several pleadings

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preceded the preliminary injunction motion, and Ms. Iafrate's
representation sometime later pertaining to Chief MacIntyre's
duties with respect to the receipt of correspondence from
Mr. Casey.
them out there so you'll know.
controversial.
I've thought of a few more.
I just want to put
I don't think they'll be
Starting with the May hearings, Chief Deputy Sheridan,
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Chief Trombi, and others, including your predecessors,
Mr. Casey and Ms. Iafrate, made representations to the Court
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about various materials they'd found.
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well.
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on those things and where they came from that I won't have to
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refer back to statements made, for example, by Chief Deputy
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Sheridan in which he indicated these things, or Chief Trombi or
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you or Mr. Casey.
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those statements, and so if you want to address them and you
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have concerns with them, please let me know.
You've done that as
09:04:22
I think that there's probably enough hearing testimony
But I may well be interested in referring to
09:04:48
You also made representations to me, Mr. Masterson,
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about the 50 hard drives in the custody -- that are currently
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in the custody of the marshal.
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hard drives were the hard drives provided by Dennis Montgomery
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to the MCSO.
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You indicated that those
09:05:09
I'm not sure that we've ever had -- as I thought
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about it last night, I'm not sure that we've ever had
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affirmative testimony that establishes that, and that's
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probably because you had made the affirmative representation to
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me, and that would be another one that I would be looking at.
I did read this morning -- I've had several things
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filed.
executive Chief Sands' sort of summary, assuming that you were
using that in lieu of spending time today, Mr. Murdy.
also, Chief MacIntyre has filed a request that he be released
from any consideration of criminal prosecutions.
And
Arpaio's deposition testimony, noting that it is consistent
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with his trial testimony.
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that he relied on his subordinates to implement the preliminary
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injunction and in his deposition testimony he indicates which
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subordinates, apparently, he relied on.
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you have a position about whether or not I can consider
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deposition testimony, but I raise it for your consideration.
For example, his trial testimony
I don't know whether
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Sheriff Arpaio's hearing testimony.
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something similar in his hearing testimony; I'm not sure if
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that specific factual specification was made.
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of some interest to me when I'm considering findings of fact
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and conclusions of law, so I just raise it for your attention
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that at least that deposition testimony purports to say that he
09:06:26
I remember him saying
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And it might be
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was relying on Chief Deputy Sheridan and Executive Chief Sands
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to implement the terms of the preliminary injunction order.
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I'm not sure that specifications were not made in
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09:05:45
In those motions they cite to, for example, Chief
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I read, for example, at least briefly reviewed,
Those are the only other things for the parties that I
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could think of overnight that may be avowals that have been
made in the course of hearings, but as I say, there may be
others.
attention before I issue any findings of fact and conclusions
of law, in case you have any comment to make on them.
If there are others, I will raise them to your
With respect to your 801(d)(2) motion for
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reconsideration, Mr. Masterson, I do share, to some extent,
sympathy with the plaintiffs when they point out that you
didn't really object to any specific evidence, and I understand
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that.
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an argument that a confidential informant is not necessarily in
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an agency relationship with a law enforcement agency.
I do think that you have a point, however, when you make
09:07:47
I think that in some cases this is not -- let me just
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be clear.
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confidential informant, it's more like they were paying
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Mr. Montgomery for his services, although there was the aspect
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that they were also paying him for access to records that he
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was purporting to them he had illegally obtained.
I think that in some cases this isn't a traditional
09:08:08
Actually, what I was thinking about, though, is I
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don't think it was error to admit any testimony that I can
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think of because, A, there may -- it depends on his statement
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whether or not he was in an agency relationship or making a
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statement that was in the course of his agency relationship.
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But if he wasn't, I'm not necessarily going to take what
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Mr. Montgomery says for truth of the matter asserted on any
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event -- in any event.
But he was involved in conversations with the other
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representatives of MCSO, and so I'm either going to consider --
if it gets down to me parsing those audiotapes that I think is
what you're talking about, I will determine whether or not it's
a statement made by Mr. Montgomery, and if it is a statement
made by Mr. Montgomery, whether that statement can be
considered in an -- made in any sort of an agency relationship
with MCSO.
And if it's not, I'm going to consider whether or
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not I'm going to consider the statement for the truth of the
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matter asserted, which I think is, you know, may well not be
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the case but it still, I think, overcomes the hearsay
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exception.
09:09:19
So I guess that's how I'll approach those audiotapes
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when I listen to them.
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there's any portion that, for some reason, doesn't qualify for
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a hearsay exception and is substantive, I don't know that I
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want to parse through and say that with respect to every
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statement that I don't think is relevant.
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the plaintiffs, if I think a statement is relevant to my
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findings of fact, but as I review it, because I've admitted
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these tapes in evidence, if I think there's some basis for your
If I think, when I listen to them, that
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But in fairness to
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motion for reconsideration, I will alert the parties so that
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the plaintiffs can address whether or not I should
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substantively consider it, or consider it not for the truth of
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the matter assert -- for the truth of the matter asserted even
if I find that there is no agency relationship established.

Is that -- everybody understand that?
Maricopa County -- oh, Mr. Masterson.
MR. MASTERSON:
Just one thing, Judge.
I think it
will apply to more than the audiotapes, because there are a
number of e-mails that have statements made -THE COURT:
Well --
MR. MASTERSON:
THE COURT:
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-- by Mr. Montgomery.
-- I may or may not do that, but, again,
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I'm not going to get bogged down in any of that stuff.
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going to look at it all, and if there's something that's
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important, I may raise it, but I've admitted those exhibits.
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We didn't have this discussion -- I mean, we did have a little
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bit of this discussion towards the end of the last day of
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evidence, but I just can't imagine that there's anything in
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those tapes that either isn't made in an agency relationship or
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that I'm going to consider for the truth of the matter
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asserted.
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exception and it could be either damaging to the plaintiffs or
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damaging to you if I were to consider it, I'll raise it with
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you.
I'm
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MR. MASTERSON:
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MR. YOUNG:
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09:10:43
09:11:02
But if there's something that falls into that
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09:10:36
09:11:16
Thank you, Judge.
Your Honor, it would be our view that
there really has not been preservation of any alleged error in
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what this motion concerns, and it's unfair to us to have such a
motion be considered to preserve any error because if there
were an objection to a document or a recording that's already
been admitted, or a statement that's already been admitted, we
should have the chance to address that objection and -THE COURT:
Didn't I just say I would give you that
object -- give you that chance if I thought there was anything
that merited my raising it with you?
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MR. YOUNG:
Yes, Your Honor.
THE COURT:
All right.
MR. YOUNG:
Thank you.
THE COURT:
All right.
09:12:01
As I was reviewing things that
we need to tidy up and close up, you've already -- I've already
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given you matters that remain under seal that I think maybe
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should go out from seal, and I know the court reporter
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indicated to me last night that some of you had asked for
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copies of those particular transcripts, so I'll expect that
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within two weeks, if there's anything that you think still
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needs to be under seal, you'll let me know that and let me know
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why.
09:12:32
we had an exchange about whether or not any highlighting on a
23
particular exhibit -- which I don't know was ever admitted into
24
evidence, but may have been -- was the result of the original
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clients, or whether or not the monitor might have highlighted
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09:12:17
Also, Mr. Masterson, I remember a couple of weeks ago
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information for you, because that was the exhibit I'd given to
you of papers that the monitor had given to me.
And I thought you were going to identify for me the
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documents that you wanted to know where the highlighting came
from, and maybe that isn't where we left it, but that's where I
thought we left it and it's left hanging, so I don't have an
answer for you.
fact, he highlighted anything.
what highlighting it is that you would be interested.
Because I'm glad to ask the monitor if, in
If you can tell me what it is,
So in order just to tie that up, let's raise that
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and -- and if you have -- if you want to know that, you need --
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as far as I recall, and I may be wrong about this, but I
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thought you were going to tell me what documents you were
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interested in, and I don't think you've done that yet.

But if you do -- I may be wrong.
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If I am, if you'll
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still tell me the documents, I'll tell you I will consult with
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the monitor and see if he highlighted any of that before he
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transmitted it to me, and if so, what he highlighted, and I'll
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let all parties know.
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THE COURT:
I will do that, Judge.
09:13:38
09:13:51
Okay.
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County, we have the objection from the plaintiffs; I don't
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think I need to decide on that today.
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plaintiffs objected to noticing the summary.
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09:13:21
We have the motion for judicial notice from the
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MR. MASTERSON:
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09:13:03
I did note that the

They would rather
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that I notice the invoices, and so maybe the County just wants
to provide the paid -- I don't know, do you have some sort of
paid receipt that you give the monitor when you pay him those
amounts?
MR. WALKER:
Your Honor, I really don't know the
answer to your question, but I can check on that, see if we
can --
THE COURT:
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09:14:24
It doesn't seem to me that there's a huge
dispute about the substance of the payment, and I can't imagine
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there would be.
If the monitor has been paid, he's been paid
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in connection with this litigation, as far as I'm aware, by
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Maricopa County, and I just don't know if the amounts actually
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paid are subject to dispute, but if you can give me those
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actual payment amounts, that will be good.
And I do note that the other thing that you asked me
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to judicially notice was my own payment order for costs
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involved in the trial of this case.
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look at what it was, but I am certainly going to judicially
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notice my own orders to the extent that the County can
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demonstrate they actually complied and paid those amounts.
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I suppose that plaintiffs are in as good a position to tell us
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whether they were paid those amounts as anybody, so I'm not
And
09:15:04
going to have a whole lot of dispute about that.
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MR. WALKER:
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THE COURT:
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09:14:49
And I haven't gone back to
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09:14:36
Thank you, Your Honor.

Is there anything else that any of the
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parties know that's outstanding before we begin?

MS. WANG:
Yes, Your Honor.
We have two matters along
these lines.
protective order relating to the Touhy subpoena to the federal
government that plaintiffs served.
number 1468.
stipulation so that we can get the materials from the federal
government.
MS. WANG:
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1468?
1468.
MR. WALKER:
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MR. MURDY:
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MS. WANG:
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09:15:47
Anybody object to my signature on document
MR. MASTERSON:
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No objection.
No objection, Your Honor.
No, Your Honor.
admission of certain deposition testimony of Rollie Seebert in
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lieu of his live testimony at trial, so we're still waiting for
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your order on that.
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THE COURT:
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That's docket number 1469.
09:16:10
If you stipulated to it, the stipulation
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is granted and I'll consider the testimony.
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MS. WANG:
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THE COURT:
Anything else?
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All right.
I am hoping, and I assume you gathered
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09:15:55
The second issue is that the parties stipulated to the
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09:15:32
Doc what?
THE COURT:
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That's document -- docket
So we would request the Court's signature on that
THE COURT:
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The first is that the parties had agreed to a
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that, since I have to pull together all the facts and relevant
facts from the hearing and the exhibits from approximately 20,
if not 21, days of hearing testimony and the exhibits
submitted, that you'll sort of outline your case.
assigned two hours and 45 minutes per side.
going.
We're going to get
rebuttal?
MS. WANG:
We would like to, Your Honor, and we'll --
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we'll gauge that as we go along.
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would like to reserve.
Any time that's remaining, we
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plaintiffs have split up the addressing of the topics.
14
Mr. Young will address the preliminary injunction and the
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pattern of recalcitrance, including the Seattle investigation.
09:17:02
I will address, with the Court's permission, the
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pretrial discovery violations, the May 14, 2014 events, and
18
matters concerning Internal Affairs.
We will take approximately two hours and 20 minutes,
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and Mr. Killebrew for the United States will take about 25
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minutes for his summation.
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THE COURT:
09:17:20
All right.
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So who's going to going to begin?
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MR. YOUNG:
I will, Your Honor.
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THE COURT:
All right.
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09:16:50
And Your Honor, just to let you know in advance,
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09:16:38
Are the plaintiffs going to reserve any time for
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I've
You'll notice that I'm going
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Argument - Young, 11/20/15 Evidentiary Hearing
4597
to sit and stand throughout.
MR. YOUNG:
Your Honor.
effort.
It will help me stay awake.
I'll try to assist you in that regard,
Or at least I'll try not to impair you in that
Your Honor, we don't have Mr. Klein today, so I'm not
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going to actually show you or play for you video and audio;
you've seen that in the hearings that we've had.
I do want to say as to the injunction, that what's at
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issue here is the fact that the current leaders of the MCSO
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violated the Constitution, violated the Court's orders, and
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then used the agency itself to try to insulate those leaders
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from the consequences of those violations.
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not its leaders, and it should be pursuing the enemies of
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public safety, and not the enemies of the sheriff.
16
Unfortunately, Sheriff Arpaio, Chief Sheridan, Chief Sands, and
17
Lieutenant Sousa, and others working with them, decided to
18
ignore the preliminary injunction order of this Court for the
19
sake of the sheriff's political position.
DS
They wanted the sheriff to be able to continue to tell
the public that he was enforcing all of the immigration laws,
22
and that was for his political benefit, particularly in the
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09:18:09
The Sheriff's Office should be protecting the public,
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09:17:51
09:18:28
09:18:46
election year of 2012.

They did stage an internal investigation -- a
violation of this Court's orders -- and found that no one in
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the department had violated any policies of the agency, and
that no one should be subject to discipline, notwithstanding
the rather valiant efforts of Mr. Vogel both to have the MCSO
have an internal -- an independent decision maker, and also to
subject the sheriff to that investigation.
09:19:26
Then after this Court's trial findings in 2013 -- and
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in particular, after its decision to appoint a monitor in
October 2013 -- the sheriff continued to search for ways to
undermine this Court and its rulings.
We saw the video of the
10
sheriff reacting on the issue of public interaction; we saw
11
Chief Sheridan call this Court's orders ludicrous and crap.

But more ominously, we ended up with the Seattle
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investigation, with an investigation of enemies of the sheriff,
14
including Mary Rose Wilcox, Eric Holder, Lanny Breuer, and
15
unfortunately, this Court.
09:20:11
The sheriff's attorneys have argued, or implied, that
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somehow the sheriff should be able to rely on shady characters,
18
even criminals, and that may be the case.
19
Sheriff Arpaio and Chief Sheridan enthusiastically became shady
20
and unsavory people themselves, fully aware that what they were
21
trying to do would be illegal, and that they -- or that they
22
would rely on what they thought was illegal activity by
24
FR
25
However, here
DS
IEN
23
09:19:46
09:20:30
Mr. Montgomery.
All this activity shows contempt, intentional
contempt, intentional violation of this Court's orders, and
09:20:50
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intentional efforts to conceal and escape the consequences of
those violations.
sacrifices that rank and file MCSO employees make every day,
and the risks that they take to their lives and safety every
day.
reform to the internal investigations process and other
operations, to make sure that the MCSO does not commit these
violations again.
That activity is not worthy of the
It requires a thorough reform of the agency, further
So I'm going to go through in a little bit of detail,
9
10
Your Honor, both the preliminary injunction issue and the
11
Seattle investigation issue, and other manifestations of the
12
agency's defiance of this Court's orders.
14
and Chief Sheridan have admitted.
15
and the OSC, and the injunction order.
16
all of those things as fact.
That's the motion to vacate

71 and 72, they admit
18
should be liable for civil contempt -- this is Arpaio and
19
Sheridan, because they've already admitted it -- and the issue
20
here is what the remedy should be.
DS
09:22:17
We have clear notification by Mr. Casey to
IEN
Chief Sands, Lieutenant Sousa, Chief Sheridan, and Sheriff
23
Arpaio, as well as Chief MacIntyre, on December 23 in
24
Exhibit 187.
25
turn anyone over to the federal government.
FR
09:21:55
So we're not really dealing here with whether they
17
22
09:21:33
I'd note various exhibits, 71, 67, which the sheriff
13
21
09:21:12
Immediately, Mr. Casey told them:
You cannot
That's at 1642 and
09:22:40
1639 of the transcript.
2
3
4
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THE COURT:
Wait a minute.
MR. YOUNG:
1642, 1639.
Give me those again.
Those are pages of the
transcript.
5
6
THE COURT:
Okay.
MR. YOUNG:
Then there's an immediate conversation on
09:22:54
the evening of December 23rd reported by Mr. Casey in his
e-mail, Exhibit 2534, where he says that Arpaio is conflicted,
and Sands and MacIntyre relatively pleased.
Mr. Casey's time records, which is 2523, Exhibit 2523,
10
11
show more conferences: on December 26 with Arpaio, Sands,
12
MacIntyre, and Sousa; on December 28 with Sands; on December 30
13
with Sands and Sousa.
14
preliminary injunction --
15
16
All of these discussions are about the
THE COURT:
Are the time records 2523 or 2533?
MR. YOUNG:
The bills are 2533, Exhibit 2533.
09:23:36
And
17
Mr. Casey testifies about this at transcript pages 1654 to
18
1655.
Despite this knowledge, the top people at the MCSO
19
never sent out a notification to all personnel within the
21
department to let them know that the activity that the Court
22
enjoined had been enjoined.
IEN
DS
20
09:23:57
Casey discusses doing this with
23
Chief Sands, according to transcript page 1653, but Chief Sands
24
says that Sheriff Arpaio says, No, let's not tell everybody,
25
let's just keep it to HSU, and Sands goes along with that
FR
09:23:13
09:24:22
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4601
instruction.
2
3
THE COURT:
Now, is this Casey's testimony?
MR. YOUNG:
Actually, what I just mentioned is Chief
Sands' testimony, and I don't have a page number for that right
now.
6
7
09:24:36
THE COURT:
All right.
MR. YOUNG:
Then there's a further discussion on
January 3, 2012, between Mr. Casey and Sheriff Arpaio.
is, again, according to Mr. Casey's time record, page
10
This
MELC210542 of Exhibit 2533.
09:24:53
In Exhibit 2535, Mr. Casey describes that
11
12
conversation, and he says:
13
he wanted a notice of appeal filed on the injunction."
14
this shows Mr. Casey's view, according to what Sheriff Arpaio
15
told him, that the MCSO was not detaining people based solely
16
on immigration status.
17
belief is -- according to the sheriff -- that the injunction is
18
relatively harmless to MCSO field operations.
19
is completely untrue.
20
injunction.
21
testified, he's admitted, that he was well aware that the
22
injunction was there.
09:25:16
And that's why Mr. Casey says that his
That, of course,
Sheriff Arpaio never forgot about the
At all times after December 23, 2011, he's
09:25:38
Other MCSO people also were aware because they started
24
the process of designing training scenarios in order to
25
implement the injunction.
FR
And
DS
IEN
23
"The sheriff called last night and
That's Exhibit 2536 and Exhibit 189.
09:25:57
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And at least a couple of the scenarios there, you know, were --
yes, Mr. Casey testified accurate.
that were not.
But there were a couple
They never finished that process, however, and that's
4
5
another problem within the MCSO.
Mr. Casey testified that he
told Sergeant Palmer that there were problems with the
scenarios, and he expected that those problems would be fixed.
And they never were fixed.
implement those training scenarios.
There never was a further effort to
Chief Sheridan also knew about the injunction.
10
We
11
have a number of e-mails on which he's listed.
12
with Mr. Casey which I'll go into a little bit more later in
13
more detail when I speak specifically as to them.
He has meetings
15
Exhibit 156, showing that he knew training was needed.
16
that it had not been approved.
17
on that meeting.
18
supposed to be implementing the injunction, they know it, but
19
they fail to do it.
He knew
So here we have people within the HSU who are
DS
Now, Sheriff Arpaio knew that he could not detain
people based on unlawful presence.
22
Mr. Casey told him, he knew it because Chief MacIntyre told
IEN
09:27:06
Lieutenant Jakowinicz is also
21
09:27:30
He knew that because
23
him, he knew it because Chief Sands told him in the case of the
24
conversation about that drop house activity, and he knew
25
because Sergeant Palmer told him when they had their argument
FR
09:26:44
We have Lieutenant Sousa's March 27, 2012 e-mail,
14
20
09:26:17
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4603
about these people that the sheriff wanted Palmer to hold.

THE COURT:
2
3
It's pretty clear that Palmer
misunderstood the injunction, isn't it?
4
5
MR. YOUNG:
That is true.
THE COURT:
Palmer told him he couldn't hold them to
photograph them, but he told -- but in order to do what he
thought was complying with the injunction, he shipped them
right off to Border Patrol.

MR. YOUNG:
That is true.
But the key fact is that
10
they discussed the injunction specifically, and they discussed
11
specifically the injunction's prohibition on detaining people.
12
The fact that Palmer got it wrong as to the full contours of
13
that doesn't detract from the fact that the sheriff was in an
14
argument with one of his subordinates about not being able to
15
keep people because of the injunction.
16
17
THE COURT:
I get that, but what does it really show?
MR. YOUNG:
It shows that the sheriff knew about the
injunction and he knew that there were restrictions on his
19
ability to hold people.
DS
THE COURT:
I think as you've said -- and maybe I'm
wrong; we'll let Mr. Masterson tell me, or Mr. Popolizio.
22
don't know that I heard the sheriff say a lot of times that he
IEN
21
really wasn't sure about the injunction.
24
is:
25
implement.
FR
23
09:28:14
09:28:35
18
20
09:28:02
09:28:47
I think his defense
I delegated this to my subordinates and/or Mr. Casey to

09:29:06
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4604
Isn't that what he said?
MR. WANG:
2
3
4
Well, he --
THE COURT:
Or does he also say:
I didn't know.
MR. YOUNG:
He alleges that, but the problem is that
the sheriff sets the policy for the department.
delegate that.
people to the Border Patrol.
his subordinates to follow through on what I'm about to
discuss, which is his effort to continue to be able to say that
10
So he doesn't
He's the one who orders Jakowinicz to take
He's the one who orders all of
he was enforcing all of the immigration laws.
12
where he says, right after the injunction is issued, despite
13
his knowledge of it, that he will continue to enforce all
14
immigration laws.
15
with Jorge Ramos, says he's still detaining undocumented
16
aliens.
Exhibit 202B, a video, one of his interviews
quote, "adamant about the fact that his office will continue to
19
enforce both state and federal illegal immigration laws as long
20
as the laws are on the books."
DS
18
Exhibit 2829A, another video; in Exhibit 196A, at the

Republican National Convention in August 2012.
24
THE COURT:
Which one was that?
25
MR. YOUNG:
Exhibit 196A.
FR
09:30:14
He says that on video in Exhibit 2828A; he says it in
IEN
23
09:29:54
In Exhibit 77, in the last paragraph he says he is,
17
22
09:29:33
We have numerous press releases, Exhibits 75, 76,
11
21
09:29:13
09:30:34
He tells Fox News he will enforce all laws, state and
1
2
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federal, with respect to immigration.
Then in June 2012, the sheriff had a series of media
3
4
appearances after ICE started to refuse to take people that the
MCSO was bringing to them based solely on unlawful presence.
He announced that he would come up with a work-around that
would involve precisely the backup plan that he later announced
in his news releases.
I would direct Your Honor to Exhibits -- and these are
9
10
videos -- 199A, where he says he will continue to enforce the
11
laws, and objects to letting people go as in amnesty, which he
12
doesn't approve; Exhibit 198B, nothing will change.
13
keep doing what he's been doing for the last four to five
14
years; Exhibit 197A, he addresses specifically the issue of
15
what to do when he has people with no state charges, and he
16
asked:
17
sad, and he will find a work-around and come up with his own
18
ideas for dealing with people where there are no state charges,
19
but where he believes that the person is in the country
20
unlawfully.
And he says, That's
09:32:08
violation of the court order, where he views this as just a
23
political matter.
24
Court's orders; it's a political imperative that causes him to
25
do that.
FR
09:31:46
It's those ideas that then lead him to a further
IEN
22
Do we let them back on the street?
09:31:19
He will
DS
21
09:31:00
It's not a matter of complying with the
09:32:25
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4606
And you see this in his interview with Neil Cavuto on
1
2
June 25, 2012 -- that's Exhibit 200A -- where Mr. Cavuto
actually asks him:
in jail because of what you're doing to keep detaining people
when you don't have state charges?
to that is:
shows that he is willing to violate an order of the Court in
order to keep doing what he wanted, which was to have people
vote for him and donate to his campaign.
Well, do you think you're going to end up
And the sheriff's response
Well, I don't want amnesty.
I have a plan.
That
And we see this in an April 13, 2012 interview,
10
11
Exhibit 201B, where he says:
12
he's doing.
He gets the big bucks because people like what
13
he's doing.
And he sends out press releases because he wants
14
to know -- he wants everyone to know what he is doing.
16
heard Mr. Casey testify that he heard of what he detected to be
17
violations of the injunction, and he and Mr. Liddy had a
18
conversation with Chief Sands about that issue.
Sheriff Arpaio's trial testimony on that issue.
21
transcript pages 1851 to 1854.
22
directly:
IEN
DS
20
FR
That's at
09:33:50
Mr. Casey told the sheriff
You cannot hold people for federal authorities.
That's page 1854, lines 16 through 20 of the transcript.
24
25
09:33:31
And then he says he also spoke to Sheriff Arpaio about
19
23
09:33:05
Yes, he's popular because of what
Now, during that same summer, during the trial we
15
09:32:43
sheriff:
And this is what Mr. Casey says:
He said he told the
Do you understand, Sheriff, that you cannot -- and he
09:34:15
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4607
says it's almost the same conversation he had later on in the
fall of 2012 -- do you understand that there is no
transportation whatsoever to the federal authorities, that you
cannot hold?
understand that.
Arpaio.
And then he says the sheriff said, quote:
I do
So it's clear what Mr. Casey told Sheriff
Then in 2012, shortly before the election, we have the
7
8
backup plan.
to federal authorities that Mr. Casey and others had told the
That's precisely the kind of turning people over
10
sheriff you cannot do.
11
Well, there's no state crime, but as directed by the sheriff,
12
two suspects were taken to the Border Patrol.
13
going to enforce all the immigration laws.
Exhibit 51, a press release, says that,
And they're
15
that describes precisely that incident that's treated in the
16
press release, which is Exhibit 51.
18
employer raid at Nu Look Revinyling.
19
which is the press release.
20
is a political statement about opening up employment
21
opportunities for those who are in the country legally.
That's at Exhibit 78,
DS
He talks in what he acknowledges
09:35:33
IEN
Exhibit 79 is the shift summary for that operation,
23
showing the lack of evidence for state charges on the second
24
page.
FR
09:35:12
Then on September 20, 2012, there's another -- it's an
17
25
09:34:52
Exhibit 56, on the ninth page is the incident report
14
22
09:34:32
Another press release, Exhibit 52, dated September 27,
09:35:51
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4608
2012, relating to United Construction, talks about ICE refusing
to arrest two illegal aliens, and Arpaio, quote, refusing to
allow them to be released into the streets and ordering
deputies to transport them to the Border Patrol, end quote.

Exhibit 81 is the shift summary for that raid.
It
shows at the first -- bottom of the first page and top of the
second two particular people who were in the country illegally,
but whom ICE refused to take, and the sheriff violated the
injunction in order to transport them to the Border Patrol.
Exhibit 82 is an October 9, 2012 news release about an
10
11
incident -- about a traffic stop performed by Deputy Armendariz
12
where this same thing took place.
09:36:28
Exhibit 83 is the incident report on that incident.
13
14
It shows at the bottom of the third page that Deputy Armendariz
15
found no criminal charges as to Mr. Soto Gonzalez, and then
16
they took him to the Border Patrol, nonetheless.
17
precisely the activity that Lieutenant Jakowinicz testified the
18
sheriff ordered him and others at HSU to perform.
09:36:53
This is
Exhibit 84 is another employer raid, October 12, 2012.
19
Six people were turned over to ICE for deportation, and that
21
they were detained despite the lack of evidence for state
22
charges, as indicated in Exhibit 85.
IEN
DS
20
23
09:37:19
So in January 2013, shown in Exhibit 180, the sheriff
24
said:
25
enforce state and federal immigration laws.
FR
09:36:11
Until the laws are changed, my deputies will continue to

That's despite the
09:37:43
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4609
clear prohibition of the injunction.
In paragraph 36,
Exhibit 67, that's the injunction, which says local law
enforcement agencies such as the MCSO may not enforce civil
federal immigration law.
There are more employment raids that are depicted in
5
6
Exhibits 80, 81, 86, and 89.
the fact that the sheriff knows that the Ninth Circuit affirmed
the injunction in September 2012.

THE COURT:
All of this is happening despite
That's at transcript 2539.
Wait a minute, please.
All right.
10
MR. YOUNG:
11
09:38:36
So, you know, there's a legal process.
We
12
have judges who make decisions who tell people that they should
13
obey the law.
14
don't like decisions can go to the appellate courts and try to
15
get the decisions overturned.
We have appellate processes where people who
They tried that in this case; they failed.
16
09:38:52
They knew
17
what the law was; the sheriff knew what the law was; he,
18
nonetheless, went ahead and continued to violate it.
So then we get to October 2012, and as to some of
19
those press releases, we, the plaintiffs, send the Sheriff's
21
Office, through Mr. Casey, a letter, raising some concerns
22
about this issue.
IEN
DS
20
23
What happened there -- and this involves both Sheriff
24
Arpaio and Chief Sands -- is that Sheriff Arpaio comes to them
25
and says:
FR
09:38:04
This is probably a violation of the injunction.
09:39:07
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4610
That's at transcript pages 1687 and 1802.
it's probably a violation.
transcript -- according to Mr. Casey, the sheriff initially
said:
transcript 1692.
Mr. Casey and Chief Sands tell the sheriff that his actions are
violating the injunction.
I refer later -- page 1691 of the
I'm the sheriff and I make the decisions.

They had a heated discussion.
THE COURT:
Mr. Casey says that
That's
Then both
What do I do about the fact that
Chief Sands doesn't seem to be able to remember any of this?

MR. YOUNG:
10
Well, I don't think that's quite accurate.
11
There are certain things where he says he doesn't remember; on
12
the other hand, there are plenty of other instances where he
13
does actually remember.
14
to Mr. Popolizio's questions at pages 16 -- actually, sorry --
15
1969 to 1971, and 1974 to 1977, Chief Sands actually answers
16
quite a number of questions.
17
Mr. Casey's testimony.
18
have any disagreement with Mr. Casey's testimony.

THE COURT:
19
And Mr. Casey's testimony, he didn't
That's true, he didn't.
It's kind of a
When he was testifying himself, though, he seemed to have a
22
mighty poor memory of things.
IEN
DS
21
09:41:01
Well, Your Honor can take that into
24
account in connection with credibility findings.
25
an issue that's relevant to the summary judgment motion, which
FR
09:40:35
And he also listened to all of
generalized statement, but he didn't have any disagreement.
MR. YOUNG:
09:40:10
And if I can point to certain answers
20
23
09:39:49
That's also
09:41:14
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4611
is part of Your Honor's list of questions the other day.
And
what I would ask is that we be allowed to respond in writing.
I know Mr. Sands filed something else this morning; I haven't
read that yet.
But the issue with the summary judgment motion, let me
5
6
say I think the motion should be denied.
considered by the Court in light of the evidence that was
admitted, but there's evidence that has been admitted that we
think is highly relevant to the motion that's not in the motion
The issues can be
10
papers.
11
evidence came in afterward.
12
the motion papers that's not in the evidence.
We haven't had a chance to brief that because the
There is material referred to in
14
the parties have a chance, we certainly should have a chance,
15
to brief that issue further.
16
THE COURT:
09:42:09
Brief what issue?
Do you want me to deny
17
the motion and allow you to file a responsive brief to the
18
brief Mr. Sands filed this morning?

MR. YOUNG:
19
Yes, that would be appropriate.
I'm
prepared to argue the motion, and there are some new things on
21
the Sands motion that result from the evidence that has come in
22
since the motion papers were filed that I can argue if you'd
IEN
DS
20
09:42:20
like to hear argument on that issue.
24
THE COURT:
You can decide how to spend your time.
25
MR. YOUNG:
All right.
FR
09:41:49
My request would be that the motion be denied and that
13
23
09:41:31
Well, why don't I -- why don't
09:42:36
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4612
I do that after we go through the injunction --
2
3
THE COURT:
All right.
MR. YOUNG:
-- and the Seattle investigation.
So what happens in October, according to Mr. Casey --
4
5
and the sheriff does not contradict any of this -- is that they
had a heated discussion.
Mr. Casey:
again.
All right.
In the end, Sheriff Arpaio tells
That's a mistake.
It won't happen
I'm not going to violate the injunction further.
Then they go ahead and send a letter that Mr. Casey
9
10
says he thinks it's likely going to lose if it ever comes up in
11
court, but he has enough that he thinks he can send the letter.
12
And that's at page 1806 about what the sheriff tells Mr. Casey,
13
and 1802 as to what Mr. Casey then did.
09:43:11
But the key here -- and this goes to the bona fideness
14
15
or non-bona fideness of that letter -- Mr. Casey tells Sheriff
16
Arpaio he's likely going to lose if that issue ever comes up.
17
That's at transcript 1802, 1691 to 1694, and 1847 to 1849.

That discussion indicates willfulness.
18
20
injunction; there's an extensive discussion of the injunction;
21
and you have the lawyer for the sheriff telling the sheriff --
22
and Chief Sands -- that the activity that they're engaging in
IEN
DS
willfulness because it's knowledge of violation of the
23
violates the injunction.
24
assessment, according to Mr. Casey.
25
violations continued.
09:43:36
It's
19
FR
09:42:51
09:44:05
And Chief Sands agrees with that

Despite that fact, those
09:44:25
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4613
On March 14, 2013, Exhibit 88 shows that seven people
1
2
were turned over to ICE despite a lack of evidence for state
charges.
That's explicit in that Exhibit 88.
Exhibit 182, dated May 18, 2013, four people were
4
5
turned over to ICE without smuggling charges.
in bragging about this, cites his oath to enforce all the laws
seriously.
The motivation for this?
8
9
year.
And the sheriff,
Again, 2012 is an election
Mr. Casey says that he was told by Chief Sands that this
10
was directed toward helping the sheriff politically, to
11
generate publicity.
12
says that the purpose of his press releases is to generate
13
publicity so the people like what he's doing.
14
as to Casey's testimony on that motivation.
09:45:12
The sheriff himself, in some of the video,
Transcript 1699,
And Sheriff Arpaio himself says this in August 2012 in
15
Exhibit 196D, his interview at the Republican convention.
17
says he's got seven and a half million dollars in campaign
18
contributions because people like what he is doing.
19
did was intentionally and calculatedly decide to violate the
20
Court's injunctions, notwithstanding his lawyer's advice, in
21
order to help his reelection.
DS
16
Now, I mentioned various individuals.
IEN
22
09:45:29
He
So what he
09:45:58
There are
23
people who are not alleged contemnors who contributed to the
24
violation that occurred here, and this shows a need for
25
thorough reform in the entire agency.
FR
09:44:47
We have various e-mails
09:46:14
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4614
involving Chief Trombi, Lieutenant Jakowinicz, Lieutenant
Trowbridge, Sergeant Palmer.
Mr. Vogel, who investigated this issue, discusses all
3
4
these people at Exhibit 2219, pages 209, 858 to 861; that's his
report.
So a whole department failed to take adequate steps.
Specifically as to Lieutenant Sousa, he knew about the
6
7
order.
says that, Well, Casey didn't actually say "arrest or release."
But the order itself, which Lieutenant Sousa did get, is quite
He knew about Casey's advice.
Now, there's a -- he
10
clear.
11
anything that HSU was doing.
12
that there was the need for training, he didn't see it through.
And it's undisputed that Lieutenant Sousa never changed

Despite the fact that he knew
14
Jakowinicz took over that role, and Lieutenant Jakowinicz
15
didn't put any training in effect, either.
16
specifically see to it that people were trained so that the
17
injunction was complied with.
But he did not
09:47:32
And I'm going to -- he testified to an interaction
18
with Mr. Casey, and I'm going to reserve that.
20
some -- I want to discuss the advice of counsel issue when I
21
get to the end of this injunction discussion.
DS
19
I do have
IEN
So Chief Sands knew about the injunction.
09:47:52
He handled
23
it, according to his own testimony, he does remember that.
24
That's at transcript 1965.
25
but never publicized the injunction to the whole department.
FR
09:47:08
Now, he left at some point in 2012 and Lieutenant
13
22
09:46:42
He was in charge of the operations,

09:48:11
OF
TH
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4615
He heard Casey's advice during the trial.
and 1678 of the transcript.
3
4
5
This is at page 1676
THE COURT:
Is this Sands?
MR. YOUNG:
Yes.
THE COURT:
And he's acknowledging that he heard what
Casey said to him about evidence that the injunction was still
being violated during trial?
MR. YOUNG:
He didn't disagree with what Mr. Casey
testified to.
10
11
12
THE COURT:
All right.
MR. YOUNG:
And he actually does say that he had some
So, for example -- and I'll try to come up with a page
14
citation -- he did testify that he had some memory of those
15
events in October 2012.
16
transcript -- this relates to Exhibits 2512 and 2514, the
17
correspondence between Mr. Casey and Mr. Sands and others -- he
18
does recall those events, or at least something relating to
19
those events surrounding the letter that Mr. Segura, counsel
20
for plaintiffs, sent.
DS
For example, at page 1959 of the
is his own admission at transcript 1965 to 1967 -- other than
24
telling Sousa to obey the order.
FR
09:49:40
really, to implement the injunction, other than telling -- this
23
25
09:49:13
So despite his knowledge, he also did not do anything,
IEN
22
09:48:46
recall of the events surrounding Mr. Segura's letter.
13
21
09:48:32
Chief Sheridan's basic defense is that he was busy
09:50:03
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4616
with other things, but he doesn't deny -- but his testimony is
not credible.
was copied on and take this into account.
denied even talking to Mr. Casey about the Melendres case prior
to the trial in July-August 2012.
953.
The Court should look at all the e-mails that he
But that's not true.
Chief Sheridan
That's at transcript 950 and
Mr. Casey's time entries show
that he talked to Chief Sheridan on December 6, 2011,
transcript 1628; March 23, 2012, page 210556 of Exhibit 2533;
10
Mr. Casey talked to Chief Sheridan on April 3rd, 2012.
11
transcript page 1675.
That's
13
that they talked with Chief Sheridan about the preliminary
14
injunction shortly after it came out.
15
the same thing.
Mr. Vogel's report says
That's Exhibit 2219 at page 209857.
Exhibit 187, for example, about the injunction; Exhibit 2511
18
about the Ninth Circuit's affirmance of the injunction -- those
19
are not isolated things.
20
wasn't paying attention to the case, and therefore he didn't
21
open the e-mails.
22
MacIntyre -- about the injunction.
IEN
DS
17
FR
25
09:51:14
So these e-mails that Chief Sheridan received --
16
24
09:50:53
Both Chief MacIntyre and Chief Sands have testified
12
23
09:50:24
Chief Sheridan can't say, well, he
09:51:37
He was talking to people -- Casey, Sands,

So he knew that it was
happening, it had happened.

So I would point, as to Chief Sheridan, to Mr. Vogel's
conclusions that Chief Sheridan violated department policy and
09:51:53
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4617
ought to be disciplined.
Exhibit 2219, says, Chief Sheridan was actually subject to a
potential 40-hour suspension because of his misbehavior with
respect to the injunction.
process that Ms. Wang will talk about, that was clearly
defective and is in need of further reform, that prevented him
from suffering that consequence.
And it was only Chief Olson, in a
So advice of counsel.
8
9
As page 209925 of Mr. Vogel's report,
never any affirmative advice.
It's undisputed that there was
If you look at page 2498 to
10
2499, the sheriff admits that no lawyer ever affirmatively told
11
him that he could hold the people that he was holding and turn
12
them over to the federal authorities.

He's asked:
13
acquiescence.
15
affirmatively told you, Yes, you can do this.
17
I'm asking whether any lawyer actually
The sheriff's answer is:
At page 2500, lines 16 to 2501, line 8, the sheriff is
asked:
21
complies with the injunction?

Answer:
IEN
FR
25
Did Casey tell you, Yes, you can do that, and it
DS
20
24
Well, I don't recall any
That's not legal advice.
19
23
09:53:04
lawyer, but if I do recall, other agencies were doing it.
18
22
09:52:42
I'm not asking about silence or
14
16
09:52:19
I don't recall him either way.
09:53:21
I recall him
not having a problem with it.

Again, 2548, lines 12 through 25, Arpaio tes --
Sheriff Arpaio testified not recalling Mr. Casey saying that
09:53:41
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4618
the sheriff could do that.
In fact, the sheriff never even heard of Mr. Casey's
2
3
letter back to plaintiffs' counsel until September 2015.
That's at transcript pages 2502 to 2503.
to any affirmative advice, either.
No one else testifies
09:54:04
So we have a -- we have no advice here.
THE COURT:
What about Sousa's testimony that he asked
Casey something about if the stop -- if we call ICE during the
course of the stop it becomes ICE's stop?

MR. YOUNG:
10
Well, I'm glad you asked that question,
11
Your Honor.
12
actually said was:
13
and Mr. Casey didn't contradict me.
14
is also in what Sheriff Arpaio alleges, that they said:
15
is what I wanted -- construe the injunction to mean, and then
16
nobody ever told me anything wrong.
What Mr. Sousa actually -- what Lieutenant Sousa
I told Mr. Casey my view of the injunction

And some version of that
That's if you believe what they say.
17
This
what they say, under the case law, that does not suffice to
19
create an advice of counsel defense.
DS
I would refer Your Honor to the Ninth Circuit criminal
jury instruction 5.9, which refers to a requirement that there
22
be full disclosure of all material facts to the attorney; that
IEN
21
23
the person claiming the advice of counsel defense must have
24
received the attorney's advice as to the specific course of
25
conduct that was followed, and then reasonably relied on that
FR
09:54:46
If you believe
18
20
09:54:28
09:55:02
09:55:21
advice.
OF
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4619
THE COURT:
Sheriff said -- I can't remember whether
Sands confirmed this or not.
told Sands to only tell the HSU because that's what the
attorney told me to do.
10
09:55:43
whether or not he limited his advice in that way?

MR. YOUNG:
8
9
Was there ever any question put to Mr. Casey as to
6
7
Sheriff said, as I recall:
I think Mr. Casey said that he told them
that everybody should be notified of the injunction.
I may be
able to tell you the page on that at some point.
09:55:56
But the jury instruction is affirmed in various Ninth
11
12
Circuit cases.
U.S. versus Bush, 626 F.3d 527:
The person
13
claiming the defense needs to present evidence that he fully
14
advised the attorney of his plan, received advice regarding
15
that plan from the attorney, and followed that exact advice in
16
good faith.
Now, even if you believe what Sheriff Arpaio and
17
18
Lieutenant Sousa said, which I don't think you should, but if
19
you did, they don't satisfy that requirement.
20
seek advice about the specific course of action before taking
21
that action.
22
them -- talked to Mr. Casey afterward, and that Casey didn't
IEN
DS
They did not
09:56:34
Sheriff Arpaio says, in fact, that he talked to
23
express objection, which is contrary to what Mr. Casey said.
24
But even if you assume what Sheriff Arpaio says is true, he
25
doesn't satisfy the requirements of the case law.
FR
09:56:17
09:56:56
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4620
And it's undisputed -- well -- yeah, it is undisputed
1
2
that Sheriff Arpaio didn't tell Mr. Casey all the facts, which
is another necessary element.
he was not detaining anyone -- transcript 1642 to 43 -- and he
told Mr. Casey that the October 2012 events were a mistake that
would not be repeated, transcript 1694.
opposite of what Mr. Casey was advising him.

THE COURT:
8
9
The sheriff told Mr. Casey that
So he did exactly the
Let me ask you this:
That's --
Isn't Mr. Casey a
bit gullible by now?
10
11
MR. YOUNG:
I'm sorry, Your Honor, a bit --
THE COURT:
If I understand the chronology, Casey has
09:57:41
12
at some point reviewed Palmer's flawed scenarios; he's gotten
13
back and told Palmer that they're flawed scenarios.
14
hears testimony, including testimony from Sheriff Arpaio, that
15
he still asserts the right to detain persons even if he has no
16
state charge, and he tells us, I think, that he pulled Sheriff
17
Arpaio aside after that and said:
18
And Sheriff Arpaio said:
19
it any more.
can't be doing this.
22
sheriff.
IEN
21
23
24
FR
25
Okay.
Then Casey
I'm not doing it.
And Sheriff Arpaio says:
And then he says:
09:57:59
You can't be doing this.
I won't do
Then he gets the October instance and he said:
DS
20
09:57:17
You
09:58:17
I'm the
Well, this was just a mistake.
Does Mr. Casey bear any responsibility to see that
this -- that something a little broader happens here?

MR. YOUNG:
Your Honor, we don't have a position on
09:58:37
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4621
Mr. Casey at this point.
2
3
THE COURT:
Does it impair his credibility at all?
MR. YOUNG:
I don't think it impairs his credibility,
in part because the sheriff didn't -- doesn't contradict
anything that Mr. Casey says.
THE COURT:
And I will -- I will --
I remember.
where he doesn't contradict him.
I'll take them, though.

MR. YOUNG:
Sure.
I remember the testimony
If you have the page cites,
So at transcript 2543 to 2544,
10
Sheriff Arpaio does not deny telling Mr. Casey that he would
11
release people without state charges.
12
2542 of the transcript as well, that's because the sheriff
13
believed that President Obama was going to let people go,
14
anyway, so there was no reason to detain them.

THE COURT:
15
incident?
17
the preliminary injunction.
Yes, that was earlier on.
And then at
2555 through 2556 of the transcript, the sheriff does not deny
20
telling Mr. Casey that he would follow Mr. Casey's advice.
point out that Mr. Casey actually represented to the
23
Ninth Circuit Court of Appeals that the Sheriff's Office was
24
not detaining people based on unlawful presence.
FR
25
09:59:45
Now, as far as Mr. Casey's credibility is concerned, I
IEN
22
DS
19
21
09:59:29
As I recall that one, that was when I first entered
MR. YOUNG:
18
09:59:09
And actually go back to
Well, yeah, but was that after the October
16
09:58:52
THE COURT:
Well, he represented that to this Court
10:00:05
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4622
even before the preliminary injunction, didn't he?

MR. YOUNG:
2
3
trying to decide --
THE COURT:
He did.
And it seems to me that if you're
Let me really be clear about that.
He
represented to this Court in writing that the Sheriff's Office
had no authority, and, in fact, had not been attempting in any
way to enforce federal civil immigration law since 2009.
That's what he represented to this Court before the preliminary
injunction.
I guess I'll say this to you, Mr. Masterson:
10
Is there
11
any way that you can detain someone, if you don't have state
12
charges, under any legal authority, if you are not asserting
13
some sort of right under federal civil immigration law?
MR. YOUNG:
15
I think that the sheriff was asserting in
16
trying to enforce federal civil immigration law.
17
he explicitly said in all of his press releases and video
18
appearances.
19
Well, I'm not going to enforce federal civil immigration law,
20
he thought he was going to lose votes and stop getting as much
21
campaign contributions as he was.
22
that and say that, and in order to be able to say that, that's
FR
25
10:00:52
That's what
I think the sheriff believed that if he said,
DS
IEN
24
10:00:30
Go ahead, Mr. Young.
14
23
10:00:15
10:01:08
So it was his interest to do
what he did.
As to Mr. Casey, I do think that you should believe
Mr. Casey's testimony.
Number one, he resigned from
10:01:24
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4623
representing the sheriff in November 2014 before this contempt
proceeding ever arose.
because of the sheriff's resistance to following the Court's
orders.
He said that his reason lay in part
He then, in testimony before this Court, scrupulously
5
6
followed his duties and refused to testify against his client
until compelled to do so.
attorney-client privilege back in April, he would never have
done that.
10
that.
If the sheriff had not waived the
I think that you need to give some credence to
10:02:02
Now, as to the October conversation, Mr. Casey says he
11
12
didn't ever see the press releases beforehand.
13
But he does not deny -- the sheriff does not deny that.
14
doesn't contradict Mr. Casey's testimony that Mr. Casey did not
15
read those press releases.
16
the defiance of the Court's orders I think is clear and
17
warrants serious remedy.
That's at 1691.
That's at 2553 to 2554.
He
So that --
19
sheriff not tell Casey all the facts, he misled Mr. Casey as to
20
the facts.
21
maybe, assuming you believe what they say.
22
advice.
IEN
DS
Plus they didn't get advice.
They got silence,
10:02:50
Silence is not
What they say they did was they told Mr. Casey their
23
views and then didn't get objection back.
24
counsel.
FR
10:02:24
On the advice of counsel defense, so not only did the
18
25
10:01:40
That's not advice of
And I would refer the Court to United States versus
10:03:11
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4624
Cheek at 3 F.3d 1057.
It's a Seventh Circuit case where the
Court notes that:
defendant sought confirmation from attorneys of his own view --
this is a tax case -- rather than independent legal advice.
There's no advice of counsel defense where
So simply telling your attorney what your view is and
5
6
then not getting advice back, and relying simply on
acquiescence, or silence, assuming you believe what chief --
what Lieutenant Sousa and Sheriff Arpaio say, that's not advice
of counsel.
So the history of resistance to the order is also
10
11
relevant in this regard.
12
investigation.
13
don't want to take undue amounts of time, but I think Your
14
Honor will recall not only the other elements of resistance to
15
the Court's orders -- like Chief Trombi's statement in March
16
2014 and the other statements that the Court has already
17
addressed in other orders -- but the fact that immediately upon
18
hearing from Mr. Montgomery and Mr. Blixseth that he could get
19
access to IRS information and tax information of this Court,
20
and upon knowing, as we heard Mr. Zullo ask Mr. Montgomery,
21
that he could use that information to destroy a person, he set
22
out to get that information.
I'm conscious of the passage of time here and I
10:04:20
10:04:44
And I want to read to you a segment of Mr. Zullo's
24
testimony.
25
answers.
FR
10:03:54
We spent a lot of time on the Seattle
DS
IEN
23
10:03:36
This was a part of one of Mr. Zullo's very long
It's at page 4403 to 4404.
And this is Mr. Zullo
10:05:05
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4625
describing his discussion with Mr. Montgomery at the very
outset.
He says -- and I'm starting at line 23, at page
3
4
4403 -- "And I'm, like:
Okay, so you've got this Judge Snow in
your database.
showed me symbols on the side of this, and he says:
going to see these.
they are.
for banking.
He says:
Yeah, but there's more.
And he
You're
When it says this, I don't remember what
Let's use 'I' for IRS.
IRS.
And he said:
This is
"I" -- that is, Mr. Zullo -- "asked him, I go:
10
10:05:26
Are
11
you telling me that in your database, these 425 hard drives,
12
you have Judge Snow, a federal judge's private, private
13
information?
14
That's what the man told me.
15
over a year."
17
18
19
10:06:13
And if --
Well, wasn't that --
MR. YOUNG:
-- you look at the e-mails --
THE COURT:
-- wasn't that testimony more in the
context of they were pursuing financial information generally?

MR. YOUNG:
That was -- it was pursuing information
23
relevant issue here is that it -- certainly, in Sheriff
24
Arpaio's mind, it was specific to the Court.
FR
25
10:06:19
relating to the banking information, but the -- I think the
IEN
22
That's what we were pursuing for
THE COURT:
DS
21
Yeah, harvested by the government.
That was Mr. Zullo's testimony.
16
20
And he goes:
10:05:43
If you look at Exhibit 2074B, the sheriff records what
10:06:37
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4626
he hears from Mr. Zullo and Detective Mackiewicz with respect
to both Your Honor and Mary Rose Wilcox.
determining whether Mr. Montgomery was implanting information
about enemies of the sheriff.
Mr. Zullo talks about
That's at page 4514 at line 2.
So Mr. Zullo and Detective Mackiewicz are quite
10:07:05
conscious about enemies of the sheriff and trying to find out
whether Mr. Montgomery can get them access to that kind of
information.
And Sheriff Arpaio records that in 2074B.
THE COURT:
Yeah, wasn't that more convincing, though,
10
in conjunction with the information he was receiving at the
11
same time from Mr. Montgomery that I was authorizing some sort
12
of wiretap, or that his phones were being wiretapped?

MR. YOUNG:
13
Yes, it's all -- it's all of a piece, Your
14
Honor.
15
some sort, banking and tax information would be, in the
16
sheriff's view, relevant to that issue.
And, in fact, if there is a suspicion of conspiracy of
THE COURT:
17
10:07:26
10:07:45
And it may be, and I'll consider it.
But
there isn't any evidence, is there, that Mr. Montgomery ever
19
supposedly provided the sheriff with any of my financial
20
information.
21
MR. YOUNG:
23
10:08:03
No, it was all fake, Your Honor.
It was
all made up, and --
IEN
22
DS
18
THE COURT:
Yeah, but there isn't even any information
that he provided him with fake financial information that
25
pertained to me.
FR
24
10:08:13
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4627
MR. YOUNG:
1
2
There's no document that shows that.
The
key, I think, is the effort that was undergone here.
And I would direct -- and again, Mr. Zullo testified
3
4
that he had other more legitimate motivations for talking to
Mr. Montgomery, and we don't need to dispute that.
I think what's at issue is what Sheriff Arpaio did and
6
7
what Chief Sheridan did with the information that Mr. Zullo was
giving them.
January and February 2015, where there's some e-mails
10
And I would direct Your Honor's attention to
specifically talking about Judge Snow information.
12
January 2015 he is keeping the sheriff informed about what he
13
was doing with Mr. Montgomery.
14
wanting to discuss the issue with the sheriff.
15
Exhibit twenty zero -- I'm sorry.

THE COURT:
16
MR. YOUNG:
21
10:09:19
Are you giving me page numbers, or are you
I'm trying to let you know which I'm doing
THE COURT:
All right.
So 2390 is what?
MR. YOUNG:
2390 is a transcript page citation in
23
THE COURT:
All right.
24
MR. YOUNG:
That's an exhibit.
25
THE COURT:
All right.
FR
10:09:27
which Mr. Zullo testifies that he kept the sheriff informed.
IEN
22
We have
when I do it.
DS
20
Exhibit 2971 shows that he's
giving me exhibit numbers?
18
19
10:08:53
At 2390 of the transcript, Mr. Zullo testified that in
11
17
10:08:33
And 2971 is?
Thank you.
10:09:40
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4628
MR. YOUNG:
Exhibit 2090, two zero nine zero, it's an
e-mail about Judge Snow.
And Mr. Zullo and Mr. Montgomery are
talking about data that would not be relevant any more if the
contempt issue were resolved.
should take a look at what Sheriff Arpaio said about what that
information was.
And I think that Your Honor
At Exhibit 2273, also in February, there's an e-mail
7
8
that specifically talks about Judge Snow info.
will recall that there was a recorded conversation where
10
Mr. Montgomery and Mr. Zullo talked about Mr. Montgomery
11
looking for doing Snow stuff.
But what the sheriff says is key.
12
13
And Your Honor
The sheriff
"Question:
In that early February 2015 time frame, in
15
fact you may have talked to Mr. Zullo about Judge Snow in
16
connection with the banking investigation, because Mr. Zullo
17
was trying to track down information about that matter, is that
18
correct?
"Answer:
19
Correct.
Could be."
23
transcript, the sheriff testified that he knew that
24
Mr. Montgomery and Mr. Zullo were working on Judge Snow
25
information insofar as he was the, quote-unquote, victim of the
FR
10:10:52
Then at page 2406, line 24 to 2407, line 19 of the
IEN
22
"Answer:
15:03:11
You're talking about the bank investigation?
"Question:
DS
21
10:10:19
testified at transcript page 2403 as follows.
14
20
10:09:56
10:11:15
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4629
banking investigation.
So I think it's pretty clear that what the sheriff was
2
3
going after and was seeking was information about Your Honor.
He talks about 150,000 people, but he admits that the only
people in Maricopa County that he can remember is himself, his
wife, and Your Honor.
And if you look at his pairing of Your Honor with Mary
7
8
Rose Wilcox, whom he admits had been an opponent of his, on
Exhibit 2074B, it's clear that he was targeting Your Honor, and
10
that whole time, that more than a year of investigation, more
11
than 250 -- at least $250,000, according to Chief Sheridan, was
12
spent, at least in part, on investigating the Court.
14
it.
15
asked at page 647, lines 4 through 14 of the transcript.
Your Honor will recall that in April Sheriff Arpaio was
Question:
16
Mr. Lemons' article -- "says that what Montgomery was actually
18
doing was investigating me?
19
article says?"
23
24
FR
25
Do you see that that's what the
DS
And Sheriff Arpaio answered:
"It's not true."
10:12:46
Well, it was true, and all the documents that have
come out since then, all the testimony that's come out since
IEN
22
10:12:28
Did you ever see the article -- this is
17
21
10:12:05
And then, to top it all off, they've been lying about
13
20
10:11:39
then, has demonstrated that.

And he was asked further at that same page of the
transcript:
"Are you aware that I've" -- and this is Your
10:13:03
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4630
Honor -- "ever been investigated by anyone?

"Answer:
You investigated?
"Question:
Yes."
The answer is:
"Question:
"Answer:
"No.
No."
Any of my activities?
10:13:18
No."
And again at page 648 to 649, the sheriff is asked
7
8
about what Mr. Mackiewicz, Mr. Anglin, and Mr. Zullo were
doing, did it involve any investigation of the Justice
10
Department or of the Court, and the sheriff's answer is:
11
not of you."
12
exhibits, Your Honor will see that that's false.
"No,
If you look at Exhibit 2072 and other similar
Now, Chief Sheridan, and to some extent Sheriff
13
14
Arpaio, say, well, they ordered their subordinates not to
15
investigate the Court.
16
true.
17
about the January 2, 2014 meeting, they both actually told
18
Sheriff Arpaio, No, this conspiracy document that we can see in
19
2072, that's hogwash, according to Mr. Casey.
21
23
10:14:22
But the sheriff believed -- and he testified himself
about this, Mr. Casey testified about it -- that it merited

further investigation.
And that's what they continued to do.
24
We saw in September 2014 another exhibit -- this is
25
one of the exhibits that we looked at -- where the time line
FR
10:14:01
If you listen to what Mr. Casey and Captain Bailey said
Captain Bailey told the sheriff, No, that's nothing.
IEN
22
That's actually -- that's actually not
DS
20
10:13:37
10:14:48
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4631
involving this alleged conspiracy was passed between
Mr. Montgomery and Mr. Zullo.
September, nine months after that meeting.
They were still looking at it in
The other thing about Chief Sheridan's testimony is
4
5
that he says that he ordered that the Court not be investigated
after seeing the time line materials.
at a meeting in November 2013 or January 2014, it's not quite
clear.
And that would be either
And he says -- this is at transcript pages 1460 to
9
10
1465 -- that Mr. Montgomery came up with a time line showing
11
the wiretap numbers after the MCSO threatened to cut off
12
payment to Mr. Montgomery.
13
coming to Mr. Montgomery.
This is an effort to keep payment
15
didn't even start to pay Montgomery until later.
16
time line document that Chief Sheridan was talking about was
17
faxed to the sheriff on November 5, 2013, that's Exhibit 2074A.
And the
10:15:45
So in fact, what happened was that the MCSO started
18
paying Mr. Montgomery after he gave the MCSO, Chief Sheridan,
20
Sheriff Arpaio, this information about this alleged conspiracy
21
involving the Department of Justice and the litigation and Your
22
Honor.
IEN
DS
19
10:16:10
So in addition, the allegation that Sheriff Arpaio
24
makes about regarding the Court only as a victim of the
25
financial identity theft is also incorrect.
FR
10:15:24
That's wrong, because Exhibit 2085 shows that the MCSO
14
23
10:15:07
The sheriff admits
10:16:32
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4632
that he never thought about telling the Court about the fact
that he alleges he thought the Court was a victim.
transcript 2445.
of the Court as being the judge presiding over the case and not
as an ordinary victim of a crime.
That's at
He says at that page that he thought in terms
10:16:57
Exhibit 2900A shows that the MCSO did interview other
6
7
people who supposedly were the victims of this identity theft.
But for the Court, they did not do that, and the sheriff didn't
do it.
He says he never thought about approaching the Court
10
with this information.
This is information, and it's actually
11
Exhibit 2981A, where Mr. Zullo, on his own initiative, asks
12
Mr. Montgomery:
13
Mr. Montgomery responds about how you could use this
14
information to destroy a person.
What can you do with this information?
And
So when you look at all of that information -- and
15
there's a lot that I haven't mentioned today, but I think Your
17
Honor has it in the record -- you can see the continuation of a
18
pattern of defying the Court's orders, trying to cover it up,
19
trying to get away with it, trying to conceal the efforts they
20
made to undermine the Court.
which exonerated everybody, despite the violations that have
24
been admitted of the preliminary injunction.
FR
10:18:06
It certainly warrants a thoroughgoing reform to the IA process,
23
25
10:17:41
That warrants very serious further injunctive relief.
IEN
22
DS
16
21
10:17:22
With that, Your Honor, I'll turn it over to Ms. Wang.
10:18:24
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Argument - Wang, 11/20/15 Evidentiary Hearing
4633
THE COURT:
Ms. Wang, I'm going to let you go for about 15 minutes
2
3
All right.
and then we're going to take a morning break, okay?

MS. WANG:
All right.
No problem.
Your Honor, I'll be addressing three topics today:
5
6
first, the pretrial discovery violations that are one of the
three grounds for civil contempt; second, the events of May 14,
2014, which are a second ground of civil contempt; and finally,
the deficiencies in MCSO's internal accountability systems that
10
we went over in voluminous testimony over the past 20 days.
11
Those three topics together fit together to show a
12
picture of an agency that has repeatedly and systemically
13
violated its discovery obligations in this litigation, that has
14
flouted court orders designed to address those violations, and
15
that is rife with a complete lack of internal accountability,
16
and as Mr. Young has already said, in which senior commanders,
17
going up to the very top of the chain of command, have violated
18
orders and tried to get away with it.
10:19:18
10:19:42
I'll start with the pretrial discovery violations.
19
The pretrial discovery violations -- specifically, the failure
21
to disclose video recordings of traffic stops -- has been
22
admitted by the sheriff and by the chief deputy.
IEN
DS
20
10:20:00
The testimony
23
establishes that those violations were systemic, and that all
24
of the efforts undertaken by the agency as a whole were
25
calculated in a way that was sure to violate their obligations.
FR
10:18:58
10:20:20
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4634
THE COURT:
Let me ask you, Ms. Wang, there is the
original preservation letter, and then there was a preservation
of Public Records Access Act request.
sent out initially by predecessor counsel.
Do you recall the dates when you started issuing the
5
6
Those two things were
discovery requests that were cited in the order to show cause?

MS. WANG:
I do not know that, Your Honor, off the top
of my head, but we'd be happy to send that to you.
they're also in our motion for the order to show cause.

THE COURT:
10
MS. WANG:
11
I think
Okay.
10:20:53
But we can provide that.
Your Honor, I would point especially to Tim Casey's
12
13
testimony that during the pretrial depositions in this case,
14
when certain HSU deputies mentioned the fact that they had
15
video recording devices, he specifically inquired of his
16
client:
17
the plaintiffs' discovery request?
18
was not true, as we now know.
10:21:07
Are there video recordings that would be responsive to

And he was told no.
That
In addition, Your Honor, Lieutenant Sousa testified
19
that the way that the agency and senior commanders, including
21
Chief Sands, decided to carry out their obligations under the
22
discovery requests was designed to leave things out.
IEN
DS
20
23
10:21:23
First of all, the agency decided to bypass the legal
24
liaison unit early on, and after that, when Lieutenant Sousa
25
was tasked with finding documents and preserving documents, he
FR
10:20:40
10:21:44
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4635
admitted that documents were -- those efforts were not logged
consistently.
That's at page 664.
Secondly, Your Honor, the document preservation
3
4
notice, as it was sent out to HSU, was extremely limited and
did not capture all of plaintiffs' requests.
Exhibit 216, Lieutenant Sousa's e-mail to HSU and other
Enforcement Support personnel, and is also -THE COURT:
8
9
10
That is
Tell me if I've got this right:
10:22:04
That
actually went out about a year and a half after the

preservation --
MS. WANG:
11
10:22:20
I believe that's right, Your Honor.
And
12
Lieutenant Sousa also acknowledged that by the time he realized
13
there was a document preservation request, the spoliation of
14
the stat sheets had already been discovered.
That exhibit, Your Honor, I would simply point to, but
15
16
I'll quickly note that it only covered e-mails, and it only
17
covered e-mails relating to operations.
18
not have required deputies to save relevant e-mails of the sort
19
that we saw at trial, only because the County's backup happened
20
to capture some of them, and we simply do not know what was
21
destroyed and not recovered.
DS
It, therefore, would
23
his own files and asked his sergeants for their files.
24
Individual deputies' documents were not searched.
FR
25
10:22:51
Lieutenant Sousa also testified that he only searched
IEN
22
10:22:31
Lieutenant Sousa testified he was not given the
10:23:09
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4636
resources to adequately comply with plaintiffs' discovery
requests and the defendants' obligations, and that it also
affected his ability to command HSU, that he was tasked with
all of this.
Finally, Your Honor -- well, I'd note two other
5
6
things.
they were not even asked to look for documents or videos before
trial.
Sheriff Arpaio was not asked to turn over his personal
10
Both Sheriff Arpaio and Chief Trombi also testified
That's at pages 607 to 08, and 100.
immigration file before trial.
And as we know,
That was at page 617.
10:23:47
Your Honor, before I turn to May 14th, I will finally
11
12
note on the subject of discovery that this failure to produce
13
the videos of traffic stops was part of a larger pattern that
14
had serious consequences for plaintiffs' ability to try the
15
case.
10:24:07
Even during and throughout these contempt proceedings,
16
and after this Court issued an order on February 12th, 2015,
18
ordering the production of documents in response to plaintiffs'
19
motions, key witnesses were not even asked to search their
20
documents, and as a result, plaintiffs had to depose multiple
21
witnesses multiple times, and including Lieutenant Jakowinicz,
22
who had to be deposed three times.
IEN
DS
17
23
10:24:27
There was no indication that these key witnesses'
24
computers that were used during relevant time periods were ever
25
searched.
FR
10:23:27
Lieutenant Sousa noted that at page 705, and
10:24:46
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4637
Sergeant Palmer at 200 to 201.
And Your Honor, Mr. Segura has handed me a note that
2
3
our first set of requests for production was served on February
25th, 2009.
to show cause, docket number 843.
And that is mentioned in our motion for an order
Your Honor, when the discovery violations -- that is,
6
7
the failure to produce the videos -- was discovered, we get to
the events of May 14, 2014.

THE COURT:
MS. WANG:
10
THE COURT:
11
Before we do that --
Yes, sir.
February 25th, 2009, any testimony from Lieutenant Sousa about
13
whether or not he was ever asked about complying with those
14
discovery requests?
MS. WANG:
15
Your Honor, I do not know as to whether he
16
testified as to the specific first set of requests for
17
production.
THE COURT:
18
Does his testimony that you've cited here
MS. WANG:
I believe that's right, Your Honor, but I
can provide a specific cite.
22
THE COURT:
IEN
21
23
MS. WANG:
10:25:54
All right.
Your Honor, the events of May 14 show that
24
even after the Court issued specific orders to try to redress
25
the discovery violations, this agency, and specifically
FR
10:25:37
just say that he was never asked to look for documents?
DS
20
10:25:23
If the discovery order was first served on
12
19
10:25:07
10:26:09
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4638
Chief Deputy Sheridan, flouted those orders the very same day
they issued and then lied to the court-appointed monitor, an
arm of the Court, about it.
sequence of events.
The record is very clear as to the
The monitor sets out the sequence of events in his
5
6
memorandum, docket number 795, which is in the record.
believe it's Exhibit 125.
general time line is corroborated by Chief Sheridan's
testimony.
THE COURT:
11
12
And that is corroborated, the
MS. WANG:
14
15
Let me ask, was there any response -- I
Yes, Your Honor.
THE COURT:
Did they contest that in the response?
MS. WANG:
I don't believe so, Your Honor, not the
10:26:56
time line.
THE COURT:
17
MS. WANG:
18
All right.
Thank you.
Your Honor, it's undisputed that after
parties left court on May 14, 2014, Sheriff Arpaio, Chief
20
Deputy Sheridan, and others met in Sheriff Arpaio's office at
21
MCSO headquarters and discussed what to do in response to the
22
order.
IEN
DS
19
10:27:08
It is undisputed and admitted that during that meeting
23
Chief Deputy Sheridan directed Chief Trombi to send out an
24
e-mail blast to dozens of commanders, and that it is also
25
undisputed that that happened without the monitor's approval.
FR
10:26:47
mean, the defendants did file a response.
13
16
Notably, Sheriff Arpaio was also present --
10
10:26:29
10:27:27
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4639
Notably, Sheriff Arpaio was present during that
1
2
meeting.
He participated in the decision to have Chief Trombi
send out that e-mail, and all the while he testified he had not
forgotten about this Court's order.
According to Chief Deputy Sheridan's own testimony, he
5
6
then proceeded to a meeting with the Monitor Team, a meeting
that took place over the course of more than two hours, in
which, as Chief Deputy Sheridan testified, he disputed
vigorously with the Monitor Team about the appropriate way to
10
carry out the Court's order that the video recordings be
11
gathered quietly.
13
compromise was reached that involved a relatively quiet method.
14
Throughout that two-plus hour meeting, Chief Deputy Sheridan
15
never disclosed that he had already ordered Chief Trombi to
16
send out an e-mail blast, something that was entirely contrary
17
to the approach that was disputed and then agreed upon with the
18
monitor.
to inform either the monitor or the Court that he had actually
21
directed Chief Trombi back in February of 2014 to begin looking
22
into the agency's use of video recording devices.
IEN
DS
20
10:28:37
That was
Exhibit 151, indicating --
24
FR
10:28:21
Notably, Your Honor, Chief Deputy Sheridan also failed
19
25
10:28:03
In the end, according to Chief Deputy Sheridan, a
12
23
10:27:44
video?
THE COURT:
All recording devices, not just audio and

10:28:57
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4640
MS. WANG:
That's right, Your Honor.
According to the
testimony during the hearing, this effort was undertaken in
response to a question about an Arizona state-issued grant for
such devices.
THE COURT:
5
6
MS. WANG:
Yes, Your Honor, as long as they related to
the traffic stops.
THE COURT:
MS. WANG:
10
Traffic stops?
That's right.
12
testimony at 867 to 68 that that would have been useful
13
information for the monitor to have as they discussed how to
14
gather the video recordings.
Upon leaving that two-plus hour meeting with the
15
16
monitor, Your Honor, Chief Sheridan talked to Christine Stutz
17
and Chief Trombi, and the two of them reminded Chief Sheridan
18
that he had already ordered Chief Trombi to send out the e-mail
19
blast.
DS
Chief Sheridan then spoke to Chief Martinez of the
Monitor Team by telephone, and then to Chief Warshaw, the court
22
monitor.
IEN
21
only violated the Court's order, but then lied about it to the
24
court-appointed monitor.
FR
10:29:28
10:29:46
This is when, Your Honor, Chief Deputy Sheridan not
23
25
10:29:16
Your Honor, Chief Deputy Sheridan admitted in his
11
20
10:29:06
broad enough to encompass audio recordings?
7
8
Were your original discovery requests
He first told Chief Warshaw over the telephone that
10:30:05
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4641
Chief Trombi had sent the e-mail without Chief Sheridan's
knowledge.
reminded by Chief Trombi that he, Sheridan, was the one who had
issued that order.
Again, he had just immediately prior to this been
Later that night, in response to the monitor's
5
6
request, Chief Sheridan wrote a letter, knowing it would go to
Your Honor -- that's Exhibit 39 -- saying that he did not know
who directed Chief Trombi to send the e-mail.
had just been reminded that afternoon by Trombi that it was he
10
And again, he
himself who had done that.
12
Deputy Sheridan, in testifying about these events, stuck to his
13
story that even though he had told both -- he had been told by
14
both Trombi and Stutz that he was the one who gave the order,
15
that night he still wrote to the monitor that he did not know
16
who issued the order.
10:31:01
Sheridan wrote in that letter, Exhibit 39, that Chief
17
Trombi had told him that it was a collective decision to send
19
the letter, or to send -- to issue the order, the e-mail blast,
20
and Trombi refuted that in his testimony at page 114 of the
21
transcript, testifying that Chief Sheridan's letter was not
22
accurate in that respect.
IEN
DS
18
10:31:14
Now, in sum, Your Honor, Chief Deputy Sheridan
24
testified that he took these actions because of fatigue and
25
because he suffered from a migraine headache that day.
FR
10:30:41
On the stand, Your Honor, during the hearing, Chief
11
23
10:30:21
10:31:31
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4642
Plaintiffs submit that is simply not credible.
Even assuming
that his order to Trombi had somehow slipped his mind during
the two-plus hour meeting with the monitor, the subsequent
events, his telephone call with Chief Warshaw and then his
letter to Chief Warshaw contained deliberate lies.
10:31:52
On the stand, Your Honor, Chief Deputy Sheridan, even
6
7
though he had admitted liability on the May 14 ground for
contempt prior to the hearing, tried to waffle, saying that he
only assumed that he was the one to give Trombi the order,
10
contrary to his other testimony and to his admission of
11
liability.
And he testified on the stand during this hearing,
12
13
incredibly, that when he told Chief Warshaw that Trombi had
14
sent the e-mail without his knowledge, what he meant to say was
15
that he didn't realize Trombi had already sent the e-mail, and
16
he added:
17
credible, Your Honor.
Dave doesn't do anything fast.
That is simply not
about what happened on May 14.
20
stand, that if a subordinate of his engaged in the same
21
conduct, he would not take any action.
22
And he maintains to the day of his testimony that the e-mail
IEN
DS
19
He testified that -- on the
10:32:48
That is at page 885.
23
blast was the best way to quietly gather the videos.
24
page 843.
FR
10:32:28
Worst of all, Chief Deputy Sheridan is unrepentant
18
25
10:32:11
That's at
The way that the May 14 order of this Court was
10:33:08
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4643
carried out, in violation of the directive to seek the
monitor's pre-approval, and to do so quietly, had consequences,
Your Honor.
the "goat rope."
were issued and then rescinded that called attention to the
fact that the agency was seeking the video recordings, and
heightened the fact that people could use the time to destroy
video recordings, contrary to what all the parties discussed
with the Court in court on May 14.
Lieutenant Sousa testified as to what he called
As a result of the sequence of events, orders
And Lieutenant Sousa noted that the best way, in his
10
11
opinion as a lieutenant and a law enforcement officer, to
12
gather the videos, would have been to send out investigators to
13
seize them, exactly the approach recommended by Chief Warshaw.
14
Ultimately, Lieutenant Sousa, and many other exhibits
15
and testimony in the record, indicate that the effort to gather
16
as many recordings as possible was stymied by what happened on
17
May 14.
18
Trombi testified to that at pages 57 to 58 and 82.
Lieutenant Sousa testified to that at page 697.
21
seeking those video recordings: Exhibits 36 and 42; Sheridan's
22
testimony at 874 that he was angry that the e-mails sent by
IEN
DS
that demonstrate the great difficulty that the agency had in
FR
25
10:34:08
Chief
20
24
10:33:46
And, Your Honor, I would point to a number of exhibits
19
23
10:33:27
10:34:32
Trombi weren't getting responses quickly enough.

He also testified that as of his testimony on April
24th, 2015, the agency still did not have 100 percent response
10:34:56
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4644
to the e-mails.
And in that sense, a response simply meant a
memorandum being turned in to detail video recordings.
Exhibits 43, 44, 154, 165, 169, 176, Palmer's
testimony at 196 and 197, and Exhibit 2050, all are relevant to
show the impact that the approach had on the gathering of the
videos.
THE COURT:
MS. WANG:
THE COURT:
Is now a good time for break?
Sure.
All right.
We will be back in 15 minutes.
(Recess taken.)
10
THE COURT:
11
MS. WANG:
12
10:35:38
You may resume.
I took the
13
opportunity during the break to find the answer to Your Honor's
14
questions about Lieutenant Sousa's testimony.
15
there's testimony establishing when he was asked to search for
16
documents.
17
preserve.
I don't believe
10:55:46
It's implied that it was after he was asked to
The testimony is at page 662 of the transcript.
I'd also note, Your Honor, that Exhibit 216 is dated
18
December 8th, 2009, which is more than nine months after
20
plaintiffs' first set of requests for production was served,
21
and Lieutenant Sousa testified at page 667 to 68 that that was
22
his first preservation notice to HSU personnel.
IEN
DS
19
23
THE COURT:
24
MS. WANG:
25
Your Honor, I'll turn now to the subject matter of
FR
10:35:26
10:56:11
Thank you.
10:56:30
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4645
MCSO's internal accountability practices and policies.
The
record evidence shows that MCSO's IA systems are designed in
numerous and systemic ways to excuse and to exonerate
misconduct, and that there has been an ongoing lack of
accountability for MCSO personnel's misconduct that violated
the rights of the plaintiff class.
One overarching and key example I would point to is
7
8
that a policy decision was made at MCSO to count multiple
violations of MCSO policies as only one violation for purposes
10
of the MCSO discipline matrix, so long as the violations were
11
categorized as related to this Melendres litigation.
13
Exhibit 2010, at MELC288485, and in the testimony of
14
Captain Bailey at 3272 to 73, and Lieutenant Seagraves at
15
page 2135.
10:57:42
The obvious consequence of that policy decision, Your
16
17
Honor, is that misconduct relating to this litigation, or
18
categorized as being related to this litigation by MCSO, is
19
minimized in terms of the discipline that is meted out.
DS
I'll start, Your Honor, with Mr. Vogel's
investigations in the 14-542 and 543 cases.
22
already mentioned them, so I'll just do this briefly.
IEN
21
23
10:58:05
Mr. Young has
It is clear that those internal investigations carried
24
out by Mr. Vogel were stymied by a lack of documents submitted
25
to him and by the reversal of all the preliminary findings of
FR
10:57:18
That is demonstrated in, among other places,
12
20
10:56:57
10:58:24
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4646
sustained except for Chief Trombi's.
The final outcomes in the
542 and 543 cases were infected with the consideration of
improper influence, and symptomatic of larger problems with
MCSO's predetermination hearing and grievance processes.
In the 542 case, Your Honor, only some of the people
5
6
in Charley Armendariz's chain of command were charged with
policy violations, even though the supervision failures
encompassed periods when he was assigned to other divisions.
That is in Bailey's testimony at 3193 to 3194.
In the end, only Chief Trombi was held accountable for
10
11
supervision failures with Armendariz, despite preliminary
12
findings to the contrary for other principals.
14
while under investigation.
15
1433 that he promoted Trombi despite the pendency of that very
16
serious internal investigation because Trombi had been doing an
17
excellent job as deputy chief.
Chief Deputy Sheridan testified at
potentially dangerous.
20
had called Sergeant Trowbridge to ensure that Armendariz would
21
not have access to a firearm, but then Chief Trombi cleared him
22
as being fit for duty and returned his weapon to him for
IEN
FR
At one point, Armendariz's physician
DS
19
25
10:59:26
Indeed, Trombi's violations were egregious and
18
24
10:59:06
Moreover, Chief Trombi was promoted to executive chief
13
23
10:58:45
regular patrol duty.
10:59:45
That's Trowbridge at 443.
Trombi merely talked to Armendariz in response to
numerous sergeants' memoranda raising concerns with the high
11:00:03
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4647
volume of civilian complaints, and we saw the results.
Others were culpable but were not disciplined.
While
Lieutenant Sousa was in command of HSU, Trombi received --
reviewed only two recordings of Armendariz's traffic stops
despite knowing --
THE COURT:
MS. WANG:
Trombi or Sousa?
-- that there were --
They reviewed it together, Your Honor.
8
9
11:00:24
Despite
knowing there had been years of a high volume of civilian
10
complaints, and they otherwise did not review any of the
11
video recordings of Armendariz's traffic stops.
Sergeants were aware of the civilian complaints over a
12
13
long period of time.
14
Sousa and Jakowinicz.
15
HSU that Armendariz had a lot of complaints, and indeed,
16
Lieutenant Sousa stated that when he was notified Armendariz
17
was joining HSU, he was already aware of problems with this
18
deputy.
Trowbridge raised problems with both
Jakowinicz was told when he started at
transferred out of HSU rather than addressing the problems as
21
supervisors and commanders and making sure the chain of command
22
addressed the problems, and yet, none of them were held to
IEN
DS
20
24
FR
25
11:00:53
Their response was merely to try to get Armendariz
19
23
11:00:34
11:01:09
account in the 542 case.

What's more troubling, Your Honor, is that there was
testimony from Chief Trombi that he did not take action against
11:01:23
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4648
Deputy Armendariz in terms of an IA referral, because most IA
investigations lead to unfounded findings.
testimony at page 78.
received no training on when to refer an employee to Internal
Affairs.
That's his
And Trombi, then a deputy chief, had
That's at page 142.
Lieutenant Bailey acknowledged that as PSB commander,
6
7
with his bird's eye perch looking at the allegations about
Charley Armendariz over numerous IA cases during his tenure,
noted that the volume of complaints and the nature of
10
complaints against Armendariz warranted initiating IA cases
11
against him, but in many cases no IA case was initiated.
12
That's Bailey at 3198.
14
one person, was held accountable for the preliminary injunction
15
violations, despite preliminary findings that did sustain
16
policy violations against some of the principals.
overturned by Chief Olson in his name clearing hearing based on
19
an argument that he had other matters on his plate.
20
Plaintiffs -- and we would submit that he improperly pressured
21
his subordinate, Chief Olson, who was sitting in judgment on
22
him during the name clearing hearing, highlighting that he was
IEN
DS
18
FR
25
11:02:26
Chief Deputy Sheridan had his sustained finding
17
24
11:02:07
Similarly, Your Honor, in the 543 case, no one, not
13
23
11:01:47
11:02:47
putting a great weight on Chief Olson's shoulders.

Regardless of that, Your Honor, it is a significant
problem that a chief deputy can evade responsibility for
11:03:03
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violations of the command responsibility, policies, in this
circumstance, based on an excuse that he was busy with other
things.
And finally, Your Honor, the only other thing I'll
4
5
mention about 543 in the short time I have is that it was known
around the MCSO rumor mill that no one was held responsible for
violations of this Court's preliminary injunction.
Sousa's testimony at 2693.
that people will not be held to account, even for violating a
10
That was
And that reinforced the message
federal court's orders.
11:03:42
Your Honor, other cases that MCSO categorized as
11
12
Armendariz spin-off investigations demonstrate a similar
13
systemic lack of accountability for serious misconduct and
14
failures in the IA process.
15
Exhibit 2943, which is now in evidence in redacted form, is a
16
spreadsheet that purports to summarize all of those cases.
17
There is a pattern of minor discipline or no discipline being
18
meted out for recurring rights violations.
The overview spreadsheet,
11:04:02
There are numerous cases that involved a lieutenant at
19
MCSO reviewing video recordings and noting Miranda violations,
21
a lack of probable cause to justify traffic stops, or deputies
22
failing to identify the reason for the stop, a lack of
IEN
DS
20
23
consequences through the pattern of minor or no discipline, and
24
that lack of consequences, Your Honor, communicates a message
25
throughout the agency that violations of people's rights are
FR
11:03:20
11:04:23
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not taken seriously.
In partial answer to one of the Court's questions,
2
3
which we will address more in writing over the next two weeks,
I would note that it is impossible for plaintiffs to ascertain
whether we had complete IA files or whether we had final files
because documents were produced piecemeal, with mentions of the
same IA number across different discontiguous Bates ranges.
There were duplicate files, there were partially overlapping
duplicate files.
10
But even from that limited record certain
patterns emerge, and I'll briefly summarize them now.
12
cases involving the handling of property belonging to people
13
who were stopped or detained by MCSO, including members of the
14
plaintiff class.
15
with the seizure and handling of property from civilians.
16
Chief Deputy Sheridan summed it up by saying there were so many
17
IA cases on the mishandling of property that he could not keep
18
them straight.
19
addressed adequately with MCSO's internal investigations.
There were recurring and systematic problems
That's at 1203.
DS
HSU, it was clear, kept property as trophies or
souvenirs, but repeatedly claimed they were for training
22
purposes.
IEN
11:05:38
Those matters were not
21
11:05:57
Defendants ended up acknowledging on the stand,
23
including Sergeant Tennyson and Chief Deputy Sheridan, that in
24
fact, not all of the IDs and other property that were
25
mishandled were used for training purposes.
FR
11:05:20
First, Your Honor, we had a lot of testimony about IA
11
20
11:05:01
11:06:18
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4651
I'd note also that other items were also allegedly
1
2
taken for training purposes, including laptops.
There was one
day, according to Exhibit 169, and as noted in Bailey's
testimony at 3230, that two HSU personnel took out two laptop
computers under the diversion program, allegedly for training.
Yet even now, the PSB investigations appear to accept
as a given the proposition that IDs and other property,
including religious items, things that Chief Deputy Sheridan
refers to as trinkets, were used for training purposes.
10
is implausible on its face and it demonstrates deficient
11
supervision.
This
13
cases noted in Exhibit 2943, all note that IDs were taken for
14
training purposes.
15
implausible that an MCSO deputy or supervisor would have in
16
their possession 1,459 IDs, 65 IDs, 46 IDs, religious shrines,
17
things of that nature, for training.

THE COURT:
18
21
MS. WANG:
23
Which of the four in 2943 are designated
I'm sorry, I don't have it noted, but it's
THE COURT:
11:07:46
MS. WANG:
All right.
Your Honor, there was also an issue that
24
came up in the testimony about the use of the 14-221 case as a
25
dumping ground for misconduct by persons other than Deputy
FR
11:07:28
in the Comments section.
IEN
22
And Your Honor, I submit it is simply
for training?
DS
20
11:07:05
Exhibit 69, Sheridan's testimony at 1468, and four
12
19
11:06:44
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Armendariz.
Now, that case started out as the death
investigation of Armendariz.
Armendariz's wrongdoing over a course of his career at MCSO,
despite the fact that he was dead.
Then it grew to encompass
And then there was testimony from Chief Sheridan that,
5
6
in fact, they used the 221 case in order to attribute any
property or evidence that they could not tie to a deputy other
than Armendariz into an IA case, and that's Sheridan's
testimony at 1549 to 50, and 1601 to 02.
Sheridan acknowledged that despite the fact that they
10
11
kept the 14-221 case open, there was no point in investigating
12
Armendariz, because he was dead.
13
testified that the 221 case was not for the purpose of imposing
14
discipline on anyone.
16
questions, that the 221 case was still open as of the last day
17
of his testimony.
18
as a closed case, and Lieutenant Seagraves testified that it
19
was a closed case.
Your Honor, there were also Internal Affairs cases
that purported to address the theft of items that were more
22
valuable than the so-called trinkets and ID cards and license
IEN
21
23
plates.
24
investigation, 14-295.
25
subject of inconsistent testimony, but it was essentially about
FR
11:08:57
But I would note that Exhibit 2943 shows it
DS
20
11:08:39
And Lieutenant Seagraves
Sheridan finally testified, in response to the Court's
15
11:08:15
11:09:16
There was significant testimony about the criminal IA

The exact scope of that case was the
11:09:45
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Cisco Perez's allegations of pocketing by HSU.
It is clear
from the record that investigation was never taken seriously.

Sheridan and the PSB investigators, Tennyson and
3
4
Bailey, all worked on the assumption that there was no theft,
and went so far as to say that they felt sorry for the suspects
in that criminal IA case.
Sheridan decided to initiate the criminal case rather
7
8
than an administrative case.
normal rule that the PSB commander is the one who determines
10
This was an exception to the
whether to go criminal or administrative.

THE COURT:
11
12
Please stop there.
That's Bailey's --
Do you have citation
MS. WANG:
Yes.
I believe it's at different places,
14
but it's addressed at 1186, I believe, and there may be other
15
citations as well, Your Honor.

THE COURT:
16
MS. WANG:
21
THE COURT:
MS. WANG:
Bailey, I believe, testified he initiated
Okay.
11:10:48
But Sheridan's testimony, Your Honor, is
very specific, and is telling as well.
IEN
22
Bailey indicated -- Bailey
it in conjunction or in consultation with Sheridan.
DS
20
All right.
11:10:38
testified that he initiated it.
18
19
In a moment of candor,
23
Your Honor, on the stand, Chief Sheridan testified that he only
24
initiated the criminal investigation because he knew that
25
plaintiffs' counsel would criticize him if MCSO did not do
FR
11:10:22
where Sheridan said he initiated it?
13
17
11:10:06
11:11:02
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something.
That's at page 1186.
He subsequently tried to change his testimony and
2
3
rehabilitate what he had said, at 1442 and 1444 on
cross-examination by Mr. Masterson, trying to explain himself.
When asked whether the initiation of the criminal case -- and
I'd note, Your Honor, that when I asked him whether the
initiation of the criminal case would potentially interfere
with the ability to bring an administrative case, the chief
deputy's demeanor and his defensiveness demonstrate a lack of
10
credibility.
11:11:41
Your Honor, throughout that investigation Sergeant
11
12
Tennyson, who was the investigator, felt that there was no
13
basis even to question the deputies in the criminal
14
investigation because, he said, there was no probable cause to
15
believe they had committed a crime, betraying both a bias going
16
into the investigation and a fundamental misunderstanding of
17
basic criminal law.
By the way, that cite is page 2913.
dissented, and said that she felt that Perez's allegations were
20
serious, and that it should have been a priority investigation.
21
That's at 2099.
DS
19
11:12:17
IEN
Tennyson's closeout memo to Chief Sheridan,
23
Exhibit 1001, has been the subject of much testimony.
24
demonstrated that the case was never taken seriously, and that
25
Tennyson relied primarily on the categorical denials of HSU
FR
11:11:57
Notably, Lieutenant Seagraves, his supervisor,
18
22
11:11:22
It
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4655
personnel that they never pocketed items.
Tennyson's memo does not indicate that he looked at
2
3
any departmental reports or other documentation of HSU
activities other than the one that Sergeant Palmer came forward
with to demonstrate that one television set had been obtained
through a civil forfeiture proceeding.

THE COURT:
7
8
Wasn't 14-295 closed
by Exhibit 2006?
MS. WANG:
9
10
I want to stop you.
Yes, Your Honor.
That was a separate
memorandum that he wrote to Captain Bailey.

THE COURT:
11
MS. WANG:
12
THE COURT:
13
11:13:05
All right.
Both of --
If I recall correctly -- and
14
Mr. Masterson, if I recall incorrectly, I want to hear what you
15
have to say on this -- but my recollection is that 14-295 was
16
closed out by 2006, but there never was a criminal
17
investigation opened with respect to the Armendariz property
18
found in the -- pursuant to the Armendariz investigation.
19
all that happened was that Exhibit 1000 incorporated the
20
findings from Exhibit 2006, the Cisco Perez allegation, and
21
then Chief Deputy Sheridan signed off on Exhibit 1000 and it
22
went back for administrative purposes.
FR
25
11:13:13
That
DS
IEN
23
24
11:12:50
11:13:37
So aren't you crossing things up a little bit there,
Ms. Wang?
MS. WANG:
Yes, Your Honor.
I may have missed --
11:13:54
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4656
you're right.
closeout memo, I think you're right is not quite accurate.

THE COURT:
MS. WANG:
Okay.
All right.
THE COURT:
5
6
I think referring to Exhibit 1001 as the
So 2006 was the closeout for 14-295; 1001
was a closeout for something that had never been opened.

MS. WANG:
That's right, Your Honor.
And was
addressed to Chief Deputy Sheridan, skipping two links, at
least two links in the chain of command.
Your Honor, Sergeant Tennyson testified that the
10
11
suspects in the criminal case, 14-295, appeared to know the
12
questions in advance of his interviews, and some of them even
13
texted him to ask what was going on.
14
that to determine whether his investigation had been
15
compromised, and whether suspects were colluding to coordinate
16
their statements.
He never followed up on
11:14:39
18
implicated by Perez's allegations, or other allegations of
19
theft, were limited to a few bad apples.
20
well.
21
that confirmation bias infected the entire investigation.
That's at 2815 as
DS
And the documents and the testimony demonstrate that
11:14:56
IEN
Tennyson never answered the question about how
23
identification documents ended up at Armendariz's house, even
24
though it was clear that Armendariz had not been involved in
25
their seizure.
FR
11:14:22
Tennyson felt from the outset that any problems
17
22
11:14:03
Tennyson only attempted to identify the owners
11:15:13
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4657
of a few of the IDs that were handed to him, and he did not
successfully locate the owner of a single one.
He also noted that many of the owners had been
3
4
deported, and the evidence showed that he did not bother even
to attempt to reach the owners of IDs who were not local to the
Maricopa County area because they had been deported.
Tennyson at 2891 and 2944.
That's
Tennyson further was aware, as Your Honor just
8
9
mentioned, that cell phones, credit cards, and firearms were
10
found in Armendariz's house, but did nothing to investigate
11
those items.
12
not review, again, any departmental reports other than the
13
single one Palmer came forward with to look into seizures of
14
high-value items.
That's Tennyson at 3137 to 38.
That's 3108 to 09.
monitor's criticisms of the Tennyson investigation outlined in
17
Exhibit 1001, including the criticism of -- including criticism
18
of the decision not to refer for criminal prosecution.
19
Sheridan did not follow-up with any of those criticisms, and
20
neither did Bailey.
DS
16
11:16:29
the record -- the record shows, that there were numerous
23
allegations and evidence indicating a problem with not just
24
mishandling of property, but potentially theft of cash and
25
valuable items, but those matters were not addressed adequately
FR
11:16:06
Now, what happened, as Your Honor has alluded to and
IEN
22
11:15:47
And Tennyson did
Chief Sheridan and Captain Bailey disagreed with the
15
21
11:15:29
11:16:52
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4658
through the Internal Affairs system.
Tennyson testified that Cisco Perez was the only
2
3
person who accused HSU of thefts.
that's at 2905.
allegations were the only indication of theft that he knew of.
But then he acknowledged under questioning that there were many
other indications of possible thefts by HSU personnel.
this is at 3200 to 3203.
Your Honor.
Bailey also initially testified that Perez's
THE COURT:
10
MS. WANG:
11
Bailey also initially --
And
I'll briefly go through them you,
This is Bailey?
11:17:28
This is Bailey, Your Honor.
In the IA case 15-21, it was discovered that an
12
13
evidence envelope indicated that $260 had been seized by a
14
Mr. Mier during a traffic stop.
15
member.
16
got only a written reprimand, and Officer Montoya, who we will
17
cover in more detail, received a not sustained finding.
18
14-570 case -- and by the way, that's Exhibit 2010, I believe.
I note he is a plaintiff class
In that case there was an investigation.
Deputy Cosme
11:17:46
In the
In the 14-570 case, Exhibit 2017, another stop
19
involving a plaintiff class member, Mr. Atondo, this was a case
21
where chief -- Deputy Armendariz counted out some cash the
22
driver had.
IEN
DS
20
The driver announced he had $1100.
11:18:10
Armendariz
23
announced, No, you have 900, and counted the cash out of view
24
of the camera.
25
investigation memo, was not investigated.
FR
11:17:10
That issue, though it came up in the

11:18:31
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4659
There was an allegation by Amber Marie Murphy that
1
2
Armendariz stole $300 from her during a traffic stop.
case at all was initiated based on that complaint by a
civilian.
for Sousa's policy violation.
receive a finding of sustained on that count, but it was
overturned in the predetermination hearing process.
It was only mentioned in the 542 case as a ground

Notably, he did initially
11:18:53
There were credit cards, drugs, weapons, and IDs found
8
9
No IA
in Armendariz's home.
Those matter were not investigated.
And
10
there were purses found in the Enforcement Support building
11
where HSU used to work, and Tennyson never bothered to try to
12
locate the owners of those purses.
Your Honor, there's an overall pattern of deficiencies
13
14
in IA practices and policies that I'll try to cover very
15
briefly and just mention citations to the record to support
16
that.
17
and needed resources, leading to a system that permits
18
manipulation and cases falling through the cracks, and there
19
are IA investigation techniques that also are skewed to
20
exculpate those charged with wrongdoing.
11:19:51
First, Your Honor, there's an issue with the
allocation of internal investigations between PSB and the
IEN
22
23
division where the employee charged works.
24
unguided discretion of commanders to determine whether civilian
25
complaints result in PSB investigations or stay on the division
FR
11:19:29
There was a lack of necessary IA policies, procedures,
DS
21
11:19:11
It is up to the
11:20:09
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4660
side where the employee is based.
That's Bailey at 3151 to 52.
PSB does not generally get involved substantively in
2
3
division-side investigations unless requested by the division,
and does not check on any cases except to run reports on how
long the investigations have been pending.
3158 to 59.
That's Bailey at
11:20:32
PSB does no testing to determine if division
7
8
commanders are properly categorizing civilian complaints.
Bailey, 3177.
There is no guidance to cabin division commanders from
10
11
deciding to label a case as minor in order to keep it on the
12
division side.
13
only reviews findings in cases involving major discipline.
14
the whole, the IA system is improperly skewed toward excusing
15
and shielding those charged at the expense of addressing
16
wrongdoing.
This is consequential, Your Honor, because PSB

On
18
minor discipline, there's no check on improper categorizing of
19
cases as minor, Bailey at 3184.
And Your Honor, the GH-2 policy on internal
DS
11:21:19
investigations, Exhibit 2888, demonstrates that complaints of a
22
minor nature do not require an in-depth investigation, and are
IEN
21
23
usually completed by a personal visit or a phone call by a
24
supervisor.
25
unguided discretion that lends itself to abuse by division
FR
11:21:05
Because there's no PSB oversight in cases involving
17
20
11:20:48
That is condoned by the written policy.
There's
11:21:38
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4661
supervisors and commanders.
There's no uniformity or accountability for
2
3
division-side IA investigations.
And even in cases involving
major discipline, which are ostensibly reviewed by PSB, the
systems are inadequate for meaningful oversight.
11:21:54
There are three commanders of PSB responsible for
6
7
reviewing all files of the division side, hundreds of cases a
year, Bailey 3184.
Different divisions and districts could have different
9
10
interpretations about how to conduct internal investigations,
11
Bailey 3166.
12
page 5 indicates that if a complainant does not sign the
13
complaint form, what to do.
14
investigate, but he does not know whether a division-side
15
investigator would read the policy the same way.
16
3179.
For example, GH-2 -- again, Exhibit 2881 -- at
Bailey testified PSB would still
That's at
18
assignment of staff on the division side for internal
19
investigations.
20
is up to the unbridled discretion of the division commander.
21
There is no policy covering -- that's Bailey, 3182.
And that, again,
DS
There is no PSB involvement.
11:22:47
IEN
There is no policy covering conflicts of interest in Internal
23
Affairs investigations.
24
to 45, Bailey testified about it at 3159 to 60, and in fact,
25
said that he does not even know whether there is such a policy.
FR
11:22:33
There's no policy guidance on the criteria for
17
22
11:22:11
Sheridan testified about that at 1543
11:23:07
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4662
It's also addressed in the PSB-related policies.
The consequence, Your Honor, is that even the captain,
2
3
the commander of PSB, does not know how MCSO could prevent a
commander from covering up policy violations in his or her
division by interfering with a division-side internal
investigation if no one brings it up to PSB's attention.
That's Bailey at 3161 to 2.
Your Honor, there were inadequate policies and
8
9
11:23:29
practices, meaning that civilian complaints are not adequately
10
addressed.
There's no testing done to determine whether
11
sergeants pull IA numbers for every civilian complaint.
12
Bailey, 3155 to 56.
GH-2, at page 3, does not clearly specify that
13
14
civilian complaints channelled through a third party should be
15
investigated, even if the first party is contacted and declines
16
to participate, for example, because of fear of retaliation.
17
That's Bailey at 3174.
investigations, are covered in a half a page of GH-2.
And MCSO
20
decisions not to refer personnel for criminal prosecution are
21
not documented with MCAO, Seagraves 2092.
DS
19
11:24:23
IEN
In addition to inadequately addressing civilian
23
complaints, Your Honor, MCSO does not adequately address
24
internal complaints and the potential for retaliation against
25
whistle-blower personnel.
FR
11:24:04
All of the policies, Your Honor, on criminal IA
18
22
11:23:47
GH-2, at page 13, requires that
11:24:44
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4663
internal complainants be given a Garrity warning.
Bailey
admits that this could cause intimidation of the complainant,
at 3184 to 6.
GH-2 also does not indicate, at pages 22 to 24, what
4
5
to do when there are indications of retaliation against an
internal complainant, and Bailey acknowledged that at 3179.

The internal complaint cases that are part of the
7
8
record, the Ruben Garcia case that came in -THE COURT:
9
10
You know what?
I need to have you stop
for a minute.
MS. WANG:
11
THE COURT:
12
11:25:22
Sure.
I need to take a note.
(Pause in proceedings.)
13
THE COURT:
14
MS. WANG:
15
All right.
Go ahead.
Your Honor, the two internal complaint
16
cases that are in the record, the Ruben Garcia case and the
17
Lawhorn case, show a larger pattern of an IA process that does
18
not adequately address race discrimination, even when the
19
claims are made by MCSO employees.
The case involving the detention sergeant, 14-114,
DS
20
which is Exhibit 2037, and is testified to by Chief Olson at
22
3580 to 89, involves a case where a supervisor in the detention
IEN
21
23
division made a series of nine anti-Mexican and anti-gay
24
remarks over a long period of time to a deputy under his
25
command.
FR
11:25:06
That violation, Your Honor, was categorized as rude
11:25:46
11:26:03
11:26:29
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4664
or insulting language under category II of the discipline
matrix rather than discrimination under category VI.
Olson defended that categorization decision at 3588, and the
principal, Sergeant Lawhorn, got only a written reprimand.
minimum for category VI, which would have been the appropriate
category, would have been a 40-hour suspension without pay.
Chief
The
In the Ruben Garcia case, Your Honor, there were
7
8
indications of retaliation against Deputy Garcia when he came
forward to allege that his fellow deputies discriminated on the
10
basis of race against him and against victims of crimes.
11
indications of retaliation were not followed up on at all in
12
the investigation.
13
was Garcia's responsibility to address race discrimination by
14
his fellow deputies.
Those
16
deputy, was not even named as a principal in the case.
17
Sheridan at 1521 to 22.
18
fault with Morrison's interview, even though he conceded that
19
Morrison signaled to the principal that he had already
20
concluded that the stop was lawful.
That's
DS
And Chief Sheridan resisted finding
11:27:50
case, which is Exhibit 2521, demonstrates that indications of
23
previous racial allegations of racial profiling against Deputy
24
Coogan, the person who made the stop of Deputy Garcia, were not
25
followed up on.
FR
11:27:31
The review of the entire 12-11 file, the Ruben Garcia
IEN
22
11:27:12
Indeed, Chief Sheridan testified that it
The deputy who made the stop of Garcia, a reserve
15
21
11:26:51
And even Chief Sheridan acknowledges that they
11:28:12
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4665
should have been, at page 1529.
Among Armendariz spin-off cases, Your Honor, repeated
2
3
Miranda violations were not taken seriously.
shows eight IA cases categorized by MCSO and the spreadsheet as
involving Miranda violations.
finding, and that deputy received only coaching as discipline.
And that was in the 15 -- excuse me, 14-580 case, Exhibit 2519.
Only one resulted in a sustained
wrote in that file that a Miranda violation is more of a
10
procedural violation than a violation of rights and policy.
11
Sheridan testified on the stand, contradicting his
12
earlier deposition testimony, that that was entirely
13
appropriate for Chief Lopez to write in an IA file.
14
1223 to 26.
There was also evidence, Your Honor, in the record
18
that there is no serious discipline for stops and searches that
19
appeared to MCSO lieutenants reviewing videos not to have had a
20
legal basis.
21
reasonable suspicion.
DS
This is traffic stops without probable cause or
11:29:38
IEN
Exhibit 2943 indicates 13 cases, by my count, of
23
either a stop or search without legal justification, or where a
24
deputy failed to call out or identify the reason for the stop.
25
Not one of those cases involved discipline more serious than a
FR
11:29:14
violations.
17
22
11:28:56
That's at
Exhibits 2029, 2063, both also involve alleged Miranda
15
16
11:28:34
Notably, Chief Lopez, who assigned the discipline,
8
9
Exhibit 2943
11:29:53
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written reprimand.
I'd point Your Honor to Exhibit 2017, which is case
2
3
14-570, again, the stop of Mr. Atondo where two lieutenants,
based on the video review, found that there was no probable
cause to justify detention of more than an hour pending a K-9
search of a vehicle.
In that case, Sergeant Trowbridge and Deputy
7
8
Armendariz had decided to make that call for a K-9 search
together, and he received a finding of unfounded.
Your Honor, there's a serious problem of leading
10
11
questions designed to exculpate throughout these IA files.
12
don't have time to go over all of them.
13
your attention to Exhibits 2010, 2029, 2063, 2772, 2104, and
14
2521.
15
numbers in those voluminous files.
11:30:29
I will simply call
We can provide in writing, Your Honor, specific Bates
11:31:01
I do want to take the time, however, to read one of
16
them, because it is so egregious and relates to Officer Montoya
18
on the issue of thefts by HSU.
19
case about the missing $260.
20
investigator.
21
briefly from the transcript of that interview.
22
in Exhibit 2010.
IEN
DS
17
This is Exhibit 2010, the 15-21
Sergeant Tennyson was the
He interviewed Officer Montoya, and I will read
Sergeant Tennyson said to Officer Montoya:
24
"These guys think the world of you.
FR
11:31:21
It's MELC288322
23
25
11:30:12
I don't know that
you know all of them, but several of them said that you were
11:31:42
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4667
the engine, I guess, that kind of drove HSU, kept everything in
order, and you did a hell of a job.

"Answer:
"Question:
4
5
I should have interviewed you last 'cause
all this stuff may not have even been necessary.

"Answer:
Okay."
Sergeant Tennyson is:
"I'll be honest with you, between you and I and the
9
10
rest of the guys you all were done injustice and I don't
11
think that -- I think that whole unit was kind of slapped
12
together with good intentions but I don't think there were the
13
tools and the training and just the resources for you guys to
14
do what you do.
Thank you.
"Question:
16
11:32:21
I mean you guys arrested a lot of people.
17
You've done some -- a lot of good.
18
that said you, on your own, would go on your own time..."
19
et cetera, et cetera.
There were several in there
DS
The entire transcript, Your Honor, of this interview,
is Sergeant Tennyson asking supposed questions of that nature,
22
and Officer Montoya saying, "Thank you," "Yes," and, "Uh-huh."
IEN
21
23
24
FR
25
11:32:07
You did a hell of a job.
"Answer:
15
20
11:31:55
Skipping to the next page, Your Honor, the question by
7
8
Thank you.
11:32:34
That is not a proper IA interview.

Your Honor, there was a failure to interview relevant
witnesses and improper weighting of the MCSO employees'
11:32:58
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4668
statements against others.
I'd point to Exhibit 2784.
The case of the Dial-a-Ride driver who -- Mr. Abreu, a
2
3
case in which Sergeant Bocchino did not even interview the
passengers in the car, the deputy there was exonerated.
There was a lot of testimony about a lack of adequate
5
6
resources for Internal Affairs investigations, and I'll simply
give you the record cites, Your Honor, because I don't have
time.
testified there were inadequate resources to cover the cases.
10
He couldn't even do his own training or discuss investigative
11
methods with subordinates, 3148 to 49.
12
training for those -- even the commanders of PSB.
Sheridan, 1408 and 37 -- sorry, 3147 to 48.
Bailey
And there was no
14
Affairs investigations even when they're brought to their
15
attention.
16
of PSB, refused to acknowledge the pattern of improper
17
techniques on the stand.
18
criticisms about the lack of investigative plans, Bailey 3168;
19
about the use of improper leading questions, 3253 and 4039.
The chief deputy and Captain Bailey, the commander
DS
Bailey disagreed with the monitor's criticism about
Sergeant Tennyson stopping an interview when the subject began
22
to vent about HSU being used for political purposes by the
IEN
11:34:04
They disagreed with the monitor's
21
23
sheriff, at 3254.
24
inappropriate apologetic tone of PSB investigators at 39 --
25
excuse me, 3249 to 50.
FR
11:33:44
Commanders do not address problems with Internal
13
20
11:33:23
11:34:26
And he also did not address the
11:34:46
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4669
There were rampant problems, Your Honor, with the
1
2
predetermination hearing and name clearing system.
I'd ask permission, since we're going to be addressing Your
Honor's questions about the exhibits on Internal Affairs, to
submit that in writing over the next two weeks.
Montoya was never disciplined, and we do plan to address Your
Honor's question in writing.
there's limited time and we need time for Mr. Killebrew.

THE COURT:
MS. WANG:
10
Your Honor,
Officer
I prefer to wrap up, since
All right.
Okay.
There's improper executive command
11
influence, Your Honor, over Internal Affairs.
12
Sheridan has a lead role in IA functions.
13
supervises the PSB commander and signs off on all IA
14
investigations done by PSB.
He directly
demonstrated a lack of credibility and candor to this Court,
17
who has demonstrated resistance to the Court's orders, and who
18
has demonstrated in his testimony a lack of concern about
19
systemic problems in IA investigations, demonstrates the need
20
for fundamental change in MCSO's internal accountability
21
systems.
DS
16
23
particular instance in which Chief Sheridan tried to -- and
24
did -- exert improper control over outcomes in IA cases.
25
Palmer testified that Sheridan assured him that an HSU deputy
FR
11:35:35
11:35:51
Recall that Sergeant Palmer testified about a
IEN
22
11:35:18
Chief Deputy
Your Honor, in short, having someone who has
15
11:35:02
11:36:08
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4670
who was charged with falsifying a tip to MCSO's immigration
hotline and was referred for investigation by an MCAO
prosecutor had nothing to worry about in a pending IA case
because the 120-day clock was about to run out.
at 215 to 216.
That's Palmer
11:36:29
Your Honor, we heard testimony about the conflict of
6
7
interest in Sheridan's assignment of Captain Bailey to command
PSB, even though he knew Bailey was the current commander over
HSU, and that HSU was at the center of what was beginning to be
10
an influx of IA cases.
That's addressed, Your Honor, at page
11
958, 1421, Bailey at 3144, Sheridan at 1540 to 41, Bailey at
12
3144.
13
entwined with the sheriff and the chief deputy for the division
14
to function independently impartially, as it should.
And the bottom line, Your Honor, is that PSB is too
Finally, Your Honor, I will try to very briefly go
15
16
through the issue of the 1459 IDs, because I think it is a
17
particularly egregious example, showing that the leadership of
18
the Internal Affairs process at MCSO cannot be trusted to hold
19
others to account.
20
monitor about an ongoing IA investigation.
there were ongoing problems with the confiscation and
23
mishandling of ID documents.
24
Briefing Board, Exhibit 2065, in April of 2015 as a result.
FR
25
11:37:52
Defendants were aware over the past two years that
IEN
22
11:37:29
To the contrary, they actually misled the
DS
21
11:36:53
They even put out a
So when it came to light on July 8th of 2015 that
11:38:09
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4671
Sergeant Knapp had 1459 IDs that he claimed he was using for
training purposes, and had attempted to put them in the
destruction bin at the Property and Evidence Unit, Sheridan and
Bailey both testified they were well aware that the monitor
would be interested in knowing about those IDs, they were well
aware that the Court had issued a discovery order on February
12th of 2015 regarding such documents, and that they had an
independent duty of candor to the monitor, and that disputes
under the Court's order in November of 2014 about the
10
disclosure of information to the monitor should be taken up
11
with the Court.
13
suspended for now an investigation into Knapp's custody of the
14
IDs.
15
July 17, 2015, they held a meeting about the IDs in preparation
16
for a monitor's site visit the following week.
17
20th, Captain Bailey answered a direct question by Chief Kiyler
18
of the Monitor Team:
They chose not to tell the monitor about the IDs.
On
11:39:16
And on July
"No."
The question, according to Bailey, was whether there
19
were any pending cases involving IDs.
21
testified forthrightly that she believed that Bailey's answer
22
was not accurate.
IEN
DS
20
Lieutenant Seagraves
11:39:40
And defendants attempt to argue that there
23
were several reasons they did not need to answer that question
24
otherwise.
FR
11:38:54
And yet what happened was that Chief Sheridan
12
25
11:38:31
The first appears to be that they believe, or argue,
11:39:59
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4672
that IDs did not fall within the four corners of the Court's
February 12th, 2015 order.
regardless of the order requiring production to the plaintiffs,
Sheridan and Bailey knew there was an independent obligation of
candor with the monitor.
But it was undisputed, again, that
11:40:17
Defendants also appear to argue, Your Honor, that the
6
7
monitor's question did not call for disclosure because of the
way it was phrased.
best knowingly parsed words to avoid disclosure when they knew
10
This is not credible, and defendants at
that the monitor was interested in knowing about the IDs.
The suspension, supposed suspension of the Internal
11
12
Affairs investigation was either manipulative in order to avoid
13
disclosure, or the entire story is not credible.
14
Sheridan simultaneously testified that he wanted to, quote,
15
have the right story, end quote, and get the facts.
16
best way to do that would have been to continue the
17
investigation, as he acknowledged.
Chief
But the
11:40:57
That's at 1349 and 1367.
Chief Sheridan's testimony about the suspension order
18
also changed over time.
20
ordered Bailey to suspend the investigation.
21
77, where we went over his depositions and his interview with
22
the Monitor Team.
IEN
DS
19
At first he testified that he simply
That's at 1376 to
11:41:15
But for the first time, during his testimony
23
on September 25th, 2015, he testified that he only meant that
24
Captain Bailey should suspend looking into the provenance of
25
the individual IDs.
FR
11:40:35
That's at 1364 to 65.
11:41:40
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4673
In the meantime, Your Honor, he had already told the
1
2
monitor, as he acknowledged during his testimony, that the
investigation had always been open.
that is simply not credible.
That's at 1373.
Again,
Sheridan also was not truthful when he stated to the
5
6
press on July 30th, 2015, that no one had ever required
disclosure of those identifications.
reason that Sheridan and Bailey could not simply have told the
monitor that they discovered the 1459 IDs and were looking into
10
it.
In short, there's no good
11:42:17
Sheridan acknowledged on the stand that the reason he
11
12
did not do so was that he believed the Monitor Team is
13
alarmist, and that he was scared they would overreact and
14
create a huge problem and he would have another Charley
15
Armendariz situation on his hands.
That's at 1367.
intentionally misleading the monitor, and that he did not take
18
the Armendariz spin-off investigation seriously, and wanted to
19
avoid another situation where a large number of potential
20
misconduct cases would be fully investigated.
DS
17
continuing throughout the end of his testimony -- repeatedly
23
said of the Knapp IDs:
24
big deal.
25
testified he would do it all over again the same way, 1516 to
FR
11:42:48
He also, Your Honor, in the end -- in the end, and
IEN
22
11:42:30
This shows two things, Your Honor: that Sheridan was
16
21
11:41:54
I don't understand why this is such a
That's at 1326 and 1516 to 17.
He's unrepentant and

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4674
17.
And it is undisputed that about 500 of the IDs belonged to
members of the plaintiff class, and that Sheridan knew the fact
as of July 17, 2015.
That's Sheridan's testimony at 1511.
Finally, Your Honor, in closing -- and I hope I
4
5
haven't taken too much time away from Mr. Killebrew -- I want
to address defendants' apparent reliance on the advice of
counsel about the Knapp IDs.
Your Honor, there can be no valid advice of counsel
8
9
defense here, because Sheridan selectively presented
10
information to Ms. Iafrate, and sought endorsement by counsel
11
of his theory, in order to avoid disclosure.
12
Sheridan 1353, and Bailey at 3867.
11:43:50
That's at
He specifically had formulated on his own the notion
13
14
that because Knapp had pulled the IDs out of the destruction
15
bin over a period of years, that there might be a reason not to
16
disclose the IDs to the monitor, and he gave counsel that
17
theory to try to endorse it.
11:44:13
It was not reasonable, Your Honor, in any event, for
18
Captain Bailey to take what Ms. Iafrate did as legitimate
20
advice of counsel.
21
him as of July 17th that she had not yet done the research into
22
the Court's orders.
IEN
DS
19
According to his testimony, she informed
11:44:29
But nonetheless, she instructed him not to
23
disclose the IDs in the meantime; and she also, according to
24
Bailey -- according to Bailey, he did not ask her what to do if
25
he were asked point-blank a question requiring disclosure.
FR
11:43:30
11:44:55
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4675
Even after the July 20th meeting, Your Honor, Chief
1
2
Sheridan testified that Ms. Iafrate had not done the legal
research
THE COURT:
4
5
--
Wait a minute.
So you're saying can't
invoke advice of counsel because she told him not to disclose?

MS. WANG:
No, Your Honor.
The reason -- the factual
findings that we would submit are justified by the record are
that Chief Sheridan formulated a theory as to why he could
avoid disclosure of the IDs and gave that to counsel for
10
endorsement.
11
not reasonable to rely on advice of counsel.
That's part of the reason, Your Honor, why it was
13
Bailey, what happened was, on July 17th, Ms. Iafrate told him:
14
I will do research.
15
the meantime.
Do not disclose these identifications in
11:45:49
And then during the meeting with the monitor,
16
according to Captain Bailey, what happened was Chief Kiyler
18
asked him the question, according to him:
19
pending IA cases about IDs?
20
he looked over at Ms. Iafrate and she shook her head and
21
audibly said the word no, and then he said no.
22
it's not reasonable to rely on that.
IEN
DS
17
Are there any
And he said no.
Because, he said,
11:46:06
Your Honor,
Bailey testified further
23
that he never received any substantive legal advice from
24
Ms. Iafrate either before or after July 20th.
FR
11:45:32
The other reason, Your Honor, is that according to
12
25
11:45:14
And the other testimony on this point, Your Honor,
11:46:23
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4676
suggests that the testimony is simply not credible.
inconsistent testimony between Sheridan, Bailey, and Seagraves
about the facts.
meeting, later that week of the monitor site visit, Bailey
approached him and told him he was concerned because it had
come to light through Lieutenant Swingle's statements to the
monitor that there were these 1459 IDs.
Sheridan testified that after the July 20th
testimony, because he was concerned that this would make it
10
look as though he had lied to the monitor.
11
testimony on that point is at 1359 to 61.
12
denied that that ever happened, at 3875.
Sheridan's
Bailey, Your Honor,
14
Captain Bailey and Ms. Iafrate met prior to July 20th and ran
15
through various possible questions and answers together in
16
advance of the July 20th meeting.
17
at page 1360.
11:47:22
That's Sheridan's testimony
Bailey denies that that happened at all, and again
18
testified simply that Michele Iafrate told him she was looking
20
into the issue, and then said the word "no" when he looked at
21
her during the meeting on July 20th.
DS
19
11:47:38
IEN
Your Honor, the entire incident with the Knapp IDs
23
demonstrates that Chief Deputy Sheridan decided at the outset
24
that he did not wish to disclose the identifications to the
25
monitor, and carried that out, and sought the endorsement of
FR
11:47:01
And Chief Deputy Sheridan said that he understood that
13
22
11:46:43
Bailey approached Sheridan, according to Sheridan's
8
9
There was
11:47:58
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4677
counsel of a theory as to why the IDs should not be disclosed.

Their theories, and their explanations about why the
2
3
IDs and the question asked by Chief Kiyler did not fit within
the four corners of the Court's orders, is simply not credible.
They knew that the monitor wanted to know about IDs, and they
answered a question about the IDs "no" when they knew that was
false.
that Bailey's response was not accurate.
And Lieutenant Seagraves acknowledged that, testifying
Your Honor, in conclusion -- and I hope you'll give
9
10
Mr. Killebrew some extra time because I think I've gone over --
11
what the Knapp --
THE COURT:
12
MS. WANG:
13
I won't.
Okay.
15
problems going to the very top of this agency with
16
accountability.
17
improvements such as the EIPro, IAPro, and BlueTeam systems as
18
a solution.
19
acknowledged, that without a change in the attitudes of
20
supervisors and commanders, there can be no meaningful change
21
in accountability at this agency.
11:48:51
Defendants have touted technological
DS
But defendants acknowledged, Chief Deputy Sheridan
11:49:12
That's Sheridan at 1542.
IEN
Tellingly, the testimony shows that, in fact, the
23
culture of the agency has not changed.
24
particular again to Chief Deputy Sheridan's testimony that
25
MCSO's culture of accountability required Deputy Garcia, a
FR
11:48:39
The Knapp ID incident shows that there are serious
14
22
11:48:21
And I point in
11:49:29
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4678
whistle-blower, a Latino deputy, to be the one responsible for
addressing racial profiling by his fellow deputies, implying
not the Internal Affairs system.
Your Honor, after the Court issues its findings of
4
5
fact, plaintiffs will plan to submit requests for additional
injunctive relief and other remedies to reform this very
serious and complete lack of internal accountability in the
system.
9
10
THE COURT:
Mr. Killebrew.
MR. YOUNG:
Actually, Your Honor, if I may, just -- we
11
did not argue the Sands motion for summary judgment.
12
an item on your order the other day.
13
talked a little bit about this.
14
think this is consistent with the conference call yesterday --
15
that our further argument on the Sands laches merger motion be
16
submitted in writing.
18
That was
Mr. Murdy and I have
We would propose -- and I
you?
THE COURT:
I think you've already responded, haven't
MR. YOUNG:
Well, I have actually additional response
DS
20
which we didn't -- I did not go over, and I'm hoping that we
22
could submit that in writing.
IEN
21
23
THE COURT:
11:50:17
11:50:31
And then there's going to be a whole
24
nother round of briefing?
25
you say it now, or I'm going to rule on the motion.
FR
11:50:03
Is that acceptable to Your Honor?
17
19
11:49:47
That's not acceptable.
So either
11:50:41
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4679
MR. YOUNG:
All right.
Well, if Your Honor will
permit me, I'll be brief.
Mr. Sands this morning, which I'm going to move to strike,
actually, since it is not authorized.
evidence that Mr. Sands says is relevant to this issue.
think that defeats the prejudice element of the laches defense
by itself.
It's chock full of
limitations, we believe the analogous statute is actually the
10
federal criminal contempt limitation statute, which under
11
18 U.S.C., Section 401 and Section 3282, is five years.
13
will not borrow from state law when a rule somewhere else in
14
federal law clearly provides a closer analogy.
15
case, the contempt criminal statute under federal law is a
16
closer analogy, and that should be the governing statute.
And in this
11:51:38
The other --
17
18
19
THE COURT:
What is the citation, again?
MR. YOUNG:
Well, the five-year criminal contempt
statute is -- it's the residual federal statute of limitations,
21
18 U.S.C., Section 3282, and that would be the -- what covers
22
the criminal contempt statute, which is 18 U.S.C., Section 401.
IEN
DS
20
23
THE COURT:
And your case?
24
MR. YOUNG:
And the case is the Jarrow case, which is
FR
11:51:14
The Jarrow case, 304 F.3d at 836, says that the court
12
25
11:50:58
With respect to the issue of the analogous statute of
8
9
We got a 22-page brief from
cited in the briefs --
11:51:51
11:52:11
1
2
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4680
THE COURT:
That will be fine if it's in the briefs.
MR. YOUNG:
Yeah, 304 F.3d at 836.
Another issue, and the Jarrow case says this as well,
3
4
is that a party with unclean hands may not assert laches.
the testimony with respect to Mr. Casey's October 18, 2012
letter establishes unclean hands.
discussed it, that they thought that argument would not
succeed, but they sent it anyway.
And
They knew, because they
That shows unclean hands.
They knew that -- at least Mr. Casey knew, and he was
9
10
the attorney for these parties, and this is the Court's
11
questions that elicited this at page 1861 of the transcript --
12
that there was no documentation for any alleged direction by
13
the federal agencies.
That's not stated in the letter.
15
Sheridan have admitted to the contempt.
16
contend that the content of that letter, which was sent to
17
plaintiffs, is any reason to exonerate them from the contempt
18
theory.
19
either.
20
that letter was something that was not stated in the letter and
21
constitutes unclean lands.
22
various other cases on unclean hands in the context of laches.
11:53:10
And that's something that wasn't stated in the letter,
The lack of merit and the lack of legal validity of
DS
IEN
They don't even
11:53:32
And there's Jarrow and there are
Finally, with respect to the merger issue, I would
24
note that the issues are different.
25
been talking about with respect to the injunction includes --
FR
11:52:54
The other thing is that Sheriff Arpaio and Chief
14
23
11:52:27
And clearly, what we've

11:53:53
OF
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4681
and we spent a lot of time on this -- knowledge of the order.
Notice of the order.
party has to have notice of the order.
In order to be liable for contempt, a
The Court's 2013 judgments and the trial that happened
4
5
in 2012 didn't relate to that element at all.
Notice of the
order that issued in 2011 on December 23rd, that was never at
issue in the trial in 2012, so there's no merger, there's no
res judicata, for that reason and for the other reasons that
are stated.
In addition, we just got yesterday, and I'm trying to
10
11
address all these things, a joinder, or a supposed joinder, an
12
attempted joinder, by the other alleged contemnors in
13
Chief Sands' motion.
14
Chief Sheridan should not be allowed to do that.
15
admitted civil contempt and they should not be allowed to join.
We think that Sheriff Arpaio and
They've
laches does not affect the availability of prospective
18
injunctive relief.
19
going to be affected by, and should not be precluded by, any
20
finding of laches, which we don't believe is warranted, but I
21
thought I should note that as well.
IEN
DS
17
23
11:54:47
So any injunctive relief is simply not
THE COURT:
Thank you.
MR. YOUNG:
I would move to strike the brief that was
24
filed this morning by Chief Sands.
25
full of substance.
FR
11:54:29
In any case -- and Jarrow and other cases say this --
16
22
11:54:10
It's not authorized.
I haven't read it all yet.
11:55:10
It is
And if it's not
11:55:28
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4682
stricken, we would ask for leave to respond to it.

THE COURT:
Well, I'm tempted to strike it.
to hear from Chief Sands' attorney first.
it, I'll allow you to respond.
5
6
7
minutes.
10
THE COURT:
Mr. Killebrew, by my count you have 26
11:55:44
Okay.
Do you want to take a lunch break, or do
you want to do it now?
11:56:01
MR. KILLEBREW:
11
12
THE COURT:
If I don't strike
MR. YOUNG:
MR. KILLEBREW:
I'm going
I'm fine taking a lunch break first,
whatever Your Honor would prefer.

THE COURT:
13
Yeah, let's take a lunch break.
MR. KILLEBREW:
14
THE COURT:
15
I don't see any reason that we can't be
16
back here at 1 o'clock.
17
MR. KILLEBREW:
THE COURT:
18
Thank you, sir.
Works for me.
But I am going to tell the parties that in
addition, in our effort to clean things up, Kathleen has made a
20
master exhibit list.
21
subsequently reintroduced as A's and other things, there's some
22
confusion.
IEN
DS
19
23
Because we had some exhibits that were
11:56:21
She's going to make a copy of that list as to what she
24
believes is reconciled to the actual exhibits.
25
give a copy to all parties so all parties can review it and
FR
11:56:07
She's going to
11:56:38
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Argument - Killebrew, 11/20/15 Evidentiary Hearing
4683
make sure that we are correct, and that if changes are
necessary, changes be made.
any changes, to submit those changes on the same deadline I've
given you for everything else, which is two weeks from today.
We'll hear you after lunch, Mr. Killebrew.
26 minutes.
You'll get
(Lunch taken.)
THE COURT:
Thank you.
Please be seated.
You ready, Mr. Killebrew?
10
MR. KILLEBREW:
11
THE COURT:
12
13:04:12
I am, Your Honor.
The clock is running.
MR. KILLEBREW:
13
Thank you, sir.
Before I get into -- I want to talk about two things
14
15
today.
16
questions from the order filed the other night, and then to
17
talk about remedies in this case.
Number one is to address a couple of the Court's
13:04:23
First, on the Court's questions, on question number 5,
18
part of that question involved whether or not there was a tally
20
of people who were detained during worksite raid operations on
21
immigration violations.
22
those operations in our litigation and we believe such a tally
IEN
DS
19
13:04:37
We conducted significant discovery on
23
does exist.
24
disclosing things to the plaintiffs, but we could either file a
25
protective order to turn those over, or I believe that they are
FR
11:56:56
Let's be back at 1 o'clock, please.
MR. KILLEBREW:
And I'm going to ask, if you have
We have privacy act concerns that prevent us from
13:04:55
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4684
in the possession of the Sheriff's Office.

THE COURT:
No, thanks.
All I'm really looking for
with my questions is evidence that's been admitted in this
lawsuit.
MR. KILLEBREW:
THE COURT:
I see.
13:05:08
If it hasn't been admitted, then I think
that I would be willing to consider stipulations, but it's only
if everybody stipulates to it.

MR. KILLEBREW:
THE COURT:
10
Okay.
So the other part of question 5 that I'll
11
be interested in is, what do -- is there anything I can do
12
about -- is there any evidence in this action that would allow
13
me to determine that there are such damages?
I think I have already Lieutenant Jakowinicz's
14
15
testimony, or something, I suppose.
16
about the extent and types of damages that may have been
17
suffered by the nature of the violations that I would invite
18
you to address, and I would invite the defendants to address
19
it, too.
20
it's going to be based on evidence that's in this record.

MR. KILLEBREW:
13:05:57
Yes, Your Honor.
23
number 13.
24
contract, about the time limitation on administrative
25
investigations, and whether those are tolled.
FR
13:05:37
The other question we wanted to address was question
IEN
22
There's also question
But when you do that, unless you stipulate otherwise,
DS
21
13:05:17
This was whether there was any statute, rule,
13:06:14
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4685
We would direct the Court to Arizona Revised Statutes,
1
2
Section 38-1110.
being 120 days and 180 days because the statute has actually
been amended.
actually 38-1105, set the time limit at 120 business days.
current version of the statute, which I think only become
effective this year, is 180 calendar days.
math on those, those are pretty similar amounts of time, but
that is the -- that is why there's a discrepancy in the record
10
There's been testimony about the time limit
The prior version of the statute, which was
The
So if you do the
about those amounts.

THE COURT:
11
13:06:58
Thank you.
MR. KILLEBREW:
12
Also, just for the Court's -- just so
13
you know, under that statute it's not a hard statute of
14
limitations.
15
discipline, but it's on -- the burden is on the employee to
16
show that the agency did not complete the investigation in good
17
faith within 180 days.
18
days, but it was in good faith, then there's no issue on
19
appeal.
21
THE COURT:
MR. KILLEBREW:
THE COURT:
24
MR. KILLEBREW:
FR
So if they were -- they went over 180
Is the measure the good faith or lack of
23
25
13:07:13
13:07:30
faith of the agency?
IEN
22
It actually -- it's a defense in an appeal of
DS
20
13:06:36
Yes, that's my understanding.
I'll look at it.
Thank you.
So now, to get into a bit of a
discussion on remedies, one year ago, actually, exactly to the
13:07:44
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4686
day, this Court issued docket entry 795.
And in that order, on
page 17, the Court said that when it was making assessments --
meaning the monitor's assessments of Internal Affairs
investigations -- cases like the present one -- meaning the IA
cases we've heard about in this contempt proceeding -- which
provide the MCSO with both significant allegations of
departmental misconduct and significant motivation to obfuscate
the truth, to avoid embarrassment, public exposure, should the
allegations prove true, in whole or in part, provide the
10
monitor with a unique opportunity to assess MCSO's willingness
11
to implement an appropriate investigation, and make appropriate
12
determinations in cases in which it might have a significant
13
impulse to do otherwise.
assess MCSO's ability to hold its personnel accountable, but
16
unfortunately, we haven't seen a willingness to implement an
17
appropriate investigation or make appropriate determinations.
18
Instead, MCSO has shown a readiness to minimize misconduct that
19
was committed by its deputies; it's shown a readiness to tailor
20
misconduct investigations to reach a preconceived conclusion;
21
it has not only ignored, but actually created conflicts of
22
interest, and that's actually up and down the chain of command;
IEN
DS
15
23
and it's shirked its responsibility to hold deputies
24
accountable when they violated the law or policy.
FR
13:08:24
In this contempt hearing we have had an opportunity to
14
25
13:08:05
The Court may recall that shortly after you issued the
13:08:37
13:08:56
13:09:16
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4687
findings of fact and conclusions of law after the trial in this
case, the United States filed a statement of interest.
actually the next docket entry on the docket.
statement of interest we invited the Court to consider consent
decrees that the United States had entered in others cases as
it was considering remedy.
It was
And in that
In a similar vein, and because the Court has invited
7
8
argument on remedy, we wanted to use our time to talk about
appropriate remedies for the failures of Internal Affairs
10
investigations that we saw in this case.

THE COURT:
11
that, but I am going to -- it is my intent, after I issue
13
findings of fact and conclusions of law, to allow argument
14
concerning remedies at that time.
15
MR. KILLEBREW:
Okay.
17
remedies, because I think it is -- it may be appropriate for
18
the Court to consider what sort of remedies may be necessary as
19
it crafts findings of fact.
DS
THE COURT:
Okay.
MR. KILLEBREW:
So I'm with the Civil Rights Division
23
enforcing, as well as the supplemental permanent injunction in
24
this case.
25
ones where we found a pattern or practice of constitutional
FR
13:10:13
in DOJ, and we currently have 13 consent decrees that we're
IEN
22
13:09:59
I would like to go ahead and sketch out a few
16
21
13:09:48
I'm not going to prevent you from doing
12
20
13:09:33
And in nearly all of those cases -- those are all

13:10:27
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4688
violations by a law enforcement agency, and in nearly all of
them there were failures of internal accountability.
go hand in hand.
The two
Contemporary law enforcement typically views
4
5
accountability in a law enforcement agency as having four
components -- there's policy, training, supervision, and
discipline -- and the consent decrees in our cases typically
address all four of those areas.
After the trial in this case, the Court found failures
9
10
in policy, training, and supervision, and entered remedies on
11
those areas.
12
has systemically failed to address misconduct by its deputies.
13
Those failures contributed not only to the constitutional
14
violations that you already found at trial, but also to harms
15
that have only come to light as a result of these contempt
16
proceedings.
Now the Court has heard ample evidence that MCSO
we've heard about as falling into two broad categories:
19
There's evidence that Internal Affairs investigations have been
20
biased, meaning that the agency has not conducted impartial
21
searches for truth; and second, there's evidence that the
22
Internal Affairs investigations were simply not carried out
IEN
DS
18
23
competently, so basic investigative protocols were not
24
followed.
FR
13:10:55
13:11:16
We are thinking of the accountability failures that
17
25
13:10:40
And these are obviously related.
An agency may not
13:11:32
13:11:49
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4689
carry out competent investigations because it has a certain
view about how those should come out, but the remedies may be
distinct.
investigations are thorough; other remedies to ensure that
investigations are impartial.
There may be some remedies to address ensuring that
13:12:08
Now, the United States works with local jurisdictions
6
7
and policing experts around the country to develop remedies to
these sorts of problems, and that's what I want to discuss, but
before going there, I just want to say that these -- we have
10
never seen facts like these.
This is an extreme case.
11
13:12:27
That's one reason we have
12
made a request to put on expert testimony.
13
assist the trier-of-fact to ensure that the remedies that the
14
Court issues here are -THE COURT:
15
16
We think it would
What would you anticipate the expert
testimony would be on?
MR. KILLEBREW:
17
What I would anticipate is that the
expert would review the findings of fact from the Court, and
19
with a view towards how other policing agencies have handled
20
these sorts of issues, provide the Court with guidance on
21
different structures that need to be put in place.
DS
18
THE COURT:
IEN
22
13:12:56
And so you'd anticipate sort of a
23
disclosure, and then defense doing their disclosure expert, and
24
then final revisions and rebuttal testimony, and then experts
25
testifying?
FR
13:12:41
13:13:17
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4690
MR. KILLEBREW:
I'm not sure that all of those
protections for -- due process protections for the defendants
are necessary in this case, but it does make sense to me that
if the defense wants to have an expert as well, that that's
only fair, and I would be -- we would be willing to work on a
compressed time line to do that.

THE COURT:
All right.
MR. KILLEBREW:
So I'm just going to go through some
aspects of consent decrees that have been entered in our cases
10
that may provide the Court some indication of remedies that may
11
be appropriate here.
13:13:47
In the big picture on impartiality, this was an issue
12
13
that came up in our case with the Cleveland Division of Police,
14
United States versus City of Cleveland, and what we asked for
15
there was that the Internal Affairs Bureau was going to be
16
headed by a civilian, someone who had no experience, previous
17
experience with the law enforcement agency.
13:14:08
And the reason for that is that internal
18
investigations are important to instill community confidence
20
that the agency is holding its own officers accountable.
21
civilian can uniquely serve that role because they have no dog
22
in the fight over the agency's history or any particular
IEN
DS
19
23
individual within the agency; they don't have that sort of
24
background.
25
consent decree.
FR
13:13:30
And a
13:14:25
That's also a requirement in our New Orleans

13:14:45
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4691
In addition, there should obviously be rules that
1
2
anyone who is involved in investigating an allegation of
misconduct should not have had any -- or reviewing an
investigation of an allegation of misconduct, should not have
had any role in that misconduct, either -THE COURT:
6
7
MR. KILLEBREW:
I don't think so.
I think that one
flows directly from the evidence.

THE COURT:
10
11
Do I need to have a trier-of-fact to make
that determination?
8
9
13:14:59
As the trier-of-fact, can I make that
determination?
MR. KILLEBREW:
12
I believe so.
I believe so.
I also think that -- we have also required other
13
14
agencies to prohibit certain officers from serving in Internal
15
Affairs, so those who have a certain history of misconduct,
16
untruthfulness, that sort of thing.
THE COURT:
18
It's a little problematic here, though,
isn't it?
For example, what if I find that the sheriff has
20
repeatedly lied to the Court?
21
Maricopa County.
22
remove him from that office, or to limit -- I guess I -- I
IEN
DS
19
He's the elected officer of
13:15:35
I don't have any authority, I don't think, to
can't remove him from office.
24
MR. KILLEBREW:
25
THE COURT:
FR
13:15:22
And then also, to ensure neutrality --
17
23
13:15:09
Um-hum.
I can't remove him from oversight and
13:15:52
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4692
responsibility of the Internal Affairs Division.
I suppose I
could require that if he is -- if he does not implement a
remedy that's acceptable either to the monitor or a civilian
employee that the matter is raised to the Court for decision as
long as it involves a member of the plaintiff class.
13:16:10
Is that what you're saying?
MR. KILLEBREW:
That would be one possibility.
Transparency would be promoted if those decisions were in
writing, and they were presented in that -- all decisions up
10
the chain of command reviewing an Internal Affairs
11
investigation, those decisions should be in writing, at least
12
to the extent that they either modify or overrule a decision
13
made below them.
13:16:22
And that way, they'd at least be reviewable.
Another possibility is the creation of entirely new
14
15
bodies.
16
could be responsible for having, for example, an office of an
17
inspector general, something that was required by our consent
18
decree with the Cleveland -- with the City of Cleveland.
19
office of the inspector general hires a team.
20
with law enforcement experience and civil rights experience.
21
It's not somebody who is a former or current employee of the
22
police agency.
24
FR
25
THE COURT:
13:16:43
The
That's people
DS
IEN
23
The County is a party in this case, and the County
13:17:01
What kind of authority do they have over
the Sheriff's Office?

MR. KILLEBREW:
They have the authority to conduct
13:17:13
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4693
investigation and publish reports.

THE COURT:
And so they can publish reports.
MR. KILLEBREW:
THE COURT:
It's transparency.
All right.
What does that do for members
of the plaintiff class who may be suffering because of
nonresponsiveness in the police agency that's ongoing that
affects or involves their rights?
MR. KILLEBREW:
13:17:26
I think there it would be sensible to
establish some sort of civilian investigative agency that just
10
deals with civilian complaints, so that those complaints are
11
not investigated by the Sheriff's Office, but instead
12
investigated by an independent entity.
13
something that we've required in our consent decrees with
14
Cleveland and Albuquerque --
15
THE COURT:
And again, that's
Let me just ask you, Mr. Killebrew.
Those
16
were consent decrees.
17
going to get a consent decree in this case.
18
have to tailor any orders I have to a rather delicate inquiry
19
where I respect the rights and the prerogatives of a duly
20
elected sheriff, and offset that against the constitutional
21
rights of the plaintiffs' class, so I make sure that I protect
22
their rights first, but without infringing on the sheriff's
So I'm going to
13:18:20
prerogatives, right?
24
MR. KILLEBREW:
25
THE COURT:
FR
13:18:01
I don't have any basis to believe I'm
DS
IEN
23
13:17:46
Yes.
And so to the extent that I have consent
13:18:36
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4694
decrees, they may be interesting and informative, but I'm
really going to have to have -- I'm really going to have to
base anything I do in the constitutional authority that I have
to protect the rights of the members of the plaintiffs' class,
correct?
13:18:49
MR. KILLEBREW:
Well, let me just -- there is a -- a
consent decree can go beyond what a judge could rule at the
close of trial, and that's established in Local 95
International Association of Firefighters versus City of
10
Cleveland, 478 U.S. 501.
But, Horne versus Flores, 129 S.Ct. 2579 from 2009,
11
12
13:19:03
which I think arose out of litigation in this district -THE COURT:
13
Do you want to give me that cite again?
MR. KILLEBREW:
14
Sure.
129 S.Ct. 2579 from 2009, makes
15
it clear that even consent decrees, especially public reform
16
litigation consent decrees, must maintain a strong association
17
with the underlying facts and with the underlying allegations.
So while I agree that the consent decrees are slightly
18
different, and anything that this Court does has to be
20
supported by a factual record, the consent decrees themselves
21
may still be persuasive and, you know, just because we have the
22
ability to go beyond the constitutional standard does not mean
IEN
DS
19
23
24
FR
25
13:19:30
13:19:48
all of our consent decrees do that.

I'll try to finish briefly here.
A feature that we
would encourage the Court to think about is redundancy.
When
13:20:10
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4695
you have an accountability system that has a single point of
failure, which I believe that the Maricopa County Sheriff's
Office system does have that, that's sort of asking for
trouble.
there are other actors who have overlapping responsibilities,
you have additional opportunities for issues to come to light,
and again, additional opportunities for transparency.
name clearing hearings.
I believe these are essentially
10
Loudermill hearings.
11
Education, 470 U.S. 532 from 1985.
12
employees have a due process right to essentially a
13
pre-termination hearing, since they have a property interest in
14
their ongoing employment.
So Loudermill versus Cleveland Board of
16
a predetermination hearing, but what's happening here is that
17
they are being gamed out, so that people are not presenting
18
evidence to the investigator and waiting to present it at the
19
predetermination hearing.
DS
THE COURT:
So if I determine that that is in fact the
case, doesn't that relate to individuals in charge as opposed
22
to policies in place?
IEN
21
23
MR. KILLEBREW:
13:21:07
13:21:21
I think the policy could require that
24
any new evidence presented at a predetermination hearing would
25
mean that the hearing is suspended; the evidence is sent back
FR
13:20:49
It establishes that public
We believe that that's essentially what's intended by
15
20
13:20:28
I wanted to address quickly the predetermination and
8
9
If you create some redundancies in the system so that
13:21:36
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4696
to the investigator for a determination of how that new
evidence fits into all the other facts.

THE COURT:
If I determine that
the investigations that have already taken place are
constitutionally inadequate, what should I do?

MR. KILLEBREW:
13:21:53
I think that's the -- that is a tough
question.
And especially if it was constitutional violations, they should
be held accountable in this court.

THE COURT:
10
11
Ultimately, officers should be held accountable.
So do you have any practical suggestions
as to how I do that?
MR. KILLEBREW:
12
This might be an excellent area for an
13
expert, but also it's something that we can consider and see if
14
there's anything we can propose to the Court.
15
this is a unique case.
16
solution.
Like I said,
I think it's going to require a unique
18
consent decrees.
19
decrees into the record, if that would be helpful to the Court.

THE COURT:
23
Well, you can file them, but I'm not going
MR. KILLEBREW:
Sure.
I wouldn't view them as
evidence; I would view them as persuasive legal authorities --
24
THE COURT:
25
MR. KILLEBREW:
FR
13:22:41
to admit them as an exhibit.
IEN
22
I would be happy to file these consent
DS
21
13:22:26
So I would just direct the Court again, we have
17
20
13:22:13
All right.
-- the court orders in others cases.
13:22:51
But just to run through some other things covered by
1
2
this, so I don't take up all the rebuttal time, we would -THE COURT:
3
4
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4697
minutes.
You're getting close.
MR. KILLEBREW:
THE COURT:
I will close.
There's a number of provisions in
those about the thoroughness investigation -- of investigations
and the thoroughness of supervisory review of investigations
10
that I think would be appropriate here.
12
that should be required, not only for people investigating
13
misconduct, but for people reviewing investigations of
14
misconduct.
15
understanding about what it is to do those investigations, and
16
what the expectations are for their quality.
All of those people have to have a common
13:23:26
Obviously, promotion should take disciplinary history
17
18
into account, and PSB should have sufficient resources to carry
19
out this work.
20
sufficient resources, and MCSO should be required to ensure
21
that they do.
DS
We've had evidence that they don't have
13:23:46
IEN
So just to close out, I just want to say that a bad
23
Internal Affairs investigation, like we've seen here, it sends
24
a message to the officers within the -- to the deputies within
25
this Sheriff's Office that they will be protected when anyone
FR
13:23:13
There's also provisions about the amount of training
11
22
13:23:00
Six minutes.
MR. KILLEBREW:
Okay.
You have five
13:24:05
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4698
comes after them, whether it be this Court, the monitor, the
plaintiff class, the plaintiff-intervenors.
wrong call is made in an Internal Affairs investigation, it
actually changes the standards for that agency, because now a
new set of misconduct is called okay.
But also, when the
We believe that that fosters a culture of lawlessness
6
7
within a law enforcement agency.
which items may be pocketed from civilians, in which money may
go missing, in which 1500 IDs may end up in a garbage bag, in
10
which drugs can be found in a deputy's car, and going back to
11
trial, in which inappropriate e-mails may circulate and in
12
which widespread discrimination takes place.
It's the kind of culture in
13:24:44
We think this disserves the community but it also
13
14
disserves law enforcement; not only the officers, the deputies
15
who serve in the Sheriff's Office, but also other law
16
enforcement agencies that are at pains to prove to their
17
communities that they're not like this.
13:25:00
I do believe that these facts are extreme and that we
18
have quite a task in front of us.
I want to thank the Court
20
for permitting the United States to intervene in this case, to
21
be part of, hopefully, a solution, and I want to thank you for
22
hearing our argument today.
IEN
DS
19
23
THE COURT:
24
You have four minutes for rebuttal left.
25
Mr. Masterson, how are you going to divide up your
FR
13:24:23
All right.
13:25:13
Thank you.
13:25:28
time?
OF
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Argument - Masterson, 11/20/15 Evidentiary Hearing
4699
MR. MASTERSON:
Well, I've spoken with Mr. Walker and
Mr. Murdy, and I am informed that they will require
approximately a half hour each.

THE COURT:
Okay.
keeping track of time.
it, I'll give it to you.
If they've got time left and you want
MR. MASTERSON:
THE COURT:
10
I do.
Okay.
I'll make sure you get your full
I will say, Mr. Masterson, for whatever help it will
13
be to you and any other parties, that it was very helpful to me
14
to the extent that plaintiffs were able to cite to exhibits and
15
page numbers.
16
as well.
17
fast like Ms. Wang did, you want to omit those things, that's
18
okay, too.
I don't have many page numbers for
DS
THE COURT:
13:26:39
Okay.
MR. MASTERSON:
Mr. Young led off by stating that MCSO
23
violated the Constitution.
24
United States of America, just told you that MCSO has a culture
25
of lawlessness and widespread discrimination.
FR
13:26:18
And I realize that maybe if you're going to go really
you, Judge, but I do have exhibits.
IEN
22
If you can do that, that will be helpful to me
MR. MASTERSON:
19
21
13:26:01
time is what I'm saying.
12
20
13:25:48
Do you understand what I'm saying?
11
If you want to cede them time, I'm
Mr. Killebrew, representing the
What both
13:27:21
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counsel failed to mention was that the United States
Government, through ICE, during its 287(g) training of MCSO
deputies, trained MCSO deputies to use race as a factor in
enforcing federal immigration laws.
MCSO and its deputies reasonably relied upon that
5
6
training given by the United States Government and, in fact, on
occasion did use race as a factor in enforcing federal
immigration law.
In the underlying lawsuit here, Melendres versus
9
10
Arpaio, this Court ruled that the use of race as a factor is
11
unconstitutional, and it clearly is; and that the use of race
12
as even one factor for law enforcement purposes amounts to
13
racial profiling.
15
that trained MCSO to specifically do what this Court has ruled
16
unconstitutional, seems to have been buried throughout the
17
course of this litigation.

THE COURT:
18
20
MR. MASTERSON:
DS
contempt hearing, Mr. Masterson?
THE COURT:
13:29:02
Tell me why.
MR. MASTERSON:
IEN
It is, Judge.
It's important here because in this
23
contempt proceeding we're talking about the failure to follow
24
this Court's order.
25
THE COURT:
FR
13:28:46
Well, is it really at issue in the
19
22
13:28:20
This fact, that it was the United States Government
14
21
13:27:59
That's the bottom line here, orders.

It is.
13:29:18
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MR. MASTERSON:
So I think it's important to note --
we've had all sorts of discussions about state of mind and
intent.
with someone or some organization who intentionally set out to
violate the United States Constitution; we're not here with
someone or an organization that set out to racial profile.
Rather, we're here with an organization which reasonably relied
upon training provided by the United States Government.
training was wrong.
I think it's important to note that we're not here
That
That training resulted in a determination
10
by this Court of unconstitutional actions by MCSO, and that
11
determination, in part, led to this Court's preliminary
12
injunction.
THE COURT:
13
14
All right.
MR. MASTERSON:
THE COURT:
16
There were other
That is correct.
as it pertained to racial profiling other than -- other than
18
what I -- I also found to be inaccurate information and
19
unconstitutional information --
DS
That is accurate.
-- provided by the United States
23
MR. MASTERSON:
24
So let's move to the preliminary injunction, and let's
FR
25
13:30:34
Government.
IEN
22
MR. MASTERSON:
THE COURT:
13:30:20
And there were other determinations even
17
21
13:30:09
determinations that I made, correct?
15
20
13:29:38
That is accurate.
first discuss Sheriff Arpaio.
13:30:48
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4702
Sheriff Arpaio's the head of MCSO.
The Court's recognized that.
He's the chief
policy maker.
The Court's
recognized that he has final decision-making authority over all
of the actions and policies of MCSO.
Sheriff Arpaio, both in writing and in this court,
5
6
admitted that he bears responsibility to have seen that
reasonable steps were taken to ensure that MCSO complied with
this Court's preliminary injunction.
admission today; he accepts that responsibility.
And he stands by that
Now, the testimony is also clear, and it's
10
11
uncontested, and the Court's even referenced it on a couple of
12
occasions today, that Sheriff Arpaio delegated the actual duty
13
of compliance to subordinates.
14
that as the elected leader, he can do that; he's entitled to
15
delegate authority vested in him to subordinates, but that
16
doesn't let him off the hook.
17
responsibility for, in this case, compliance with the Court's
18
preliminary injunction.
THE COURT:
19
I think one of the things I said that I
14th, in the May 14th hearing.
22
consider that?
IEN
DS
21
FR
25
13:32:01
Ultimately, he bears the
probably ought to mention to you, I said that to him on May
24
13:31:38
And this Court's recognized
20
23
13:31:11
13:32:18
Are you going to object if I
Do I even need to consider it, because you're
conceding it?
MR. MASTERSON:
Well, I'm conceding it, Judge, and I
think you also said it again in the February 12, 2015 order.
13:32:31
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4703
So the sheriff accepts the responsibility for the
1
2
violation that did occur of the Court's preliminary injunction.
But what we have to discuss now is intention, willfulness.
The objective intent, as shown by the evidence in this
4
5
case, is that rather than ignore this Court's preliminary
injunction, rather than defy this Court's preliminary
injunction, MCSO was trying to comply with the Court's
Exhibit 187.
THE COURT:
10
admitted.
Yes, sir.
May we publish these at --
THE COURT:
14
You may.
MR. MASTERSON:
15
THE COURT:
16
-- the same time?
In Exhibit 187, Mr. Casey, on December
18
23, 2011, is providing information about the Court's
19
20
that he said here, and I'm going to come back to this exhibit a
21
little later as well.
DS
And I want to note a couple of things
13:34:19
IEN
In paragraph 5, on page 1 of 2, Mr. Casey notes that:
23
"The Court is enjoining the MCSO 'from detaining any person
24
based solely on knowledge, without more, that the person is in
25
the country without unlawful authority.'"
FR
13:33:49
You may.
MR. MASTERSON:
17
22
13:33:35
Judge, the exhibits I'm going to refer to are all
12
13
And I first want to refer the Court to
That's the Casey e-mail?
MR. MASTERSON:
11
13:33:04
13:37:30
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4704
Now, that's a poorly crafted sentence in itself, but
1
2
since we've all been together for a very long time I think we
know what he meant to say.
this letter, and apparently in the first contact he had, or
first communication he had with MCSO after the December 23,
2011 order.
But he didn't say it very well in
What I want to refer the Court to next -- and again, I
7
8
told you we're going to be coming back to this exhibit -- is
Exhibit 2537.
Exhibit 2537 -- and I'm looking at the first
10
page of the exhibit -- the e-mail of January 11, 2012, from
11
Lieutenant Sousa to Sergeant Brett Palmer.
13
is quite clear:
14
of scenarios (right way and wrong way) based on Judge Snows
15
order to MCSO and your conversations with Tim Casey.
16
have Tim review what you write up and have Chief Sands sign off
17
on it.
18
reference putting something out in E-Learning."
"Per our phone conversation write up a couple
I will
13:36:13
Once all that is done we will get with training
After Tim Casey's December 23, 2011 communication to
19
MCSO about the preliminary injunction, the very first thing you
21
see coming from Lieutenant Sousa to Sergeant Palmer is an
22
attempt to comply with this Court's order; is an attempt to
IEN
DS
20
23
craft training to train deputies to comply with this Court's
24
order.
FR
13:35:48
And what Lieutenant Sousa is telling Sergeant Palmer
12
25
13:35:09
Now, the e-mail references Judge Snow's order, and it
13:36:37
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4705
quotes from Exhibit 187 the language that Tim Casey provided
that "The Court is enjoining the MCSO 'from detaining any
person based solely on knowledge, without more, that the person
is in the country without unlawful authority.'"
Again, a mistake, but I'm not really harping on that
5
6
mistake.
to Sergeant Palmer.
But the language was passed on from Lieutenant Sousa
It could not be more clear, by Exhibit 2537, that MCSO
8
9
is not ignoring the Court's order; MCSO is not defying this
10
Court's preliminary injunction.
11
comply; they're trying to craft training.
Rather, they're trying to
13
done -- and again, we're talking about putting together the
14
training scenarios -- Mr. Casey is supposed to review --
15
according to Lieutenant Sousa -- and then Chief Sands will sign
16
off on it and off it goes to E-Learning.
17
So what happens next?
THE COURT:
23
24
FR
25
You know, is this a chronology?
MR. MASTERSON:
THE COURT:
IEN
22
Well, what happens next is we
Are we
going to go through in chronological order some exhibits?
DS
21
13:38:24
turn to Exhibit 2538.
19
20
13:38:02
Now, what Exhibit 2537 then says is once all that is
12
18
13:37:33
13:38:41
Yes, we are.
I don't know if you're ready to answer
this, and if you're not, I won't ask any questions about it.
Yesterday in our phone call I raised some issues that
concerned me concerning the chronology prior to the oral
13:38:57
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4706
argument on the preliminary injunction order.
me, as I go back and look and recall, that the substance of the
argument --
And did you have a chance to review that?
MR. MASTERSON:
THE COURT:
6
7
Your questions?
Or the order?
Yeah, the actual order, my questions, and
MR. MASTERSON:
I reviewed the order; I did not have a
chance to review the questions and response.

THE COURT:
10
Okay.
Well, I will spare you the
11
questions, but I will tell you, if it makes any difference, so
12
you have a chance to respond, it appears to me as I review all
13
that that what -- there really wasn't a question at the
14
preliminary injunction stage whether the MCSO had the ability
15
to detain people that they weren't going to charge for state
16
law violations, because they had acknowledged that they had no
17
authority under federal law to enforce civil immigration law.
18
They'd already made that acknowledgment.
13:39:28
13:39:45
And really, what oral argument was about was whether,
19
pursuant to the state human smuggling act -- which was still
21
valid and enforceable at the time, and I didn't make any
22
decision that it wasn't -- but the question was:
IEN
DS
20
13:40:06
Pursuant to
23
the state human smuggling act, was it enough to detain somebody
24
for an investigation under that human smuggling act to know
25
simply -- or to have a reasonable suspicion or a knowledge that
FR
13:39:12
the response by the MCSO?
8
9
And it seems to
13:40:23
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4707
someone was in the country without authorization?
really what was at issue in the preliminary injunction.
a foregone conclusion that there was no authority for the MCSO
simply to detain people.
It was
And so that puts a little bit of a different shade on
5
6
That was
it for me.
Do you understand --
MR. MASTERSON:
THE COURT:
I do.
-- what I'm saying?
MR. MASTERSON:
I do.
And Judge, we are going to go
10
back and within the couple weeks that you've suggested, we'll
11
be responding to questions, and that's going to be one of the
12
questions we will respond to.
13
THE COURT:
All right.
you can respond, those press releases that are coming out that
15
indicate we're still enforcing all the immigration laws, those
16
cause me some concern because -- and again, I'll just tell you
17
from my view, and I'll invite your response -- looks to me like
18
from Exhibit -- is it 2533, Casey's bills?
19
met with Sheriff Arpaio the day before he filed that indication
20
that MCSO acknowledges that it has not been enforcing and did
21
not enforce federal immigration law, and that it had already
22
trained its deputies, including the HSU, concerning what it
13:41:03
Looks to me like he
DS
IEN
13:40:51
And just so you're aware and
14
23
meant to have the 287(g) authority revoked, and that Ninth
24
Circuit case I cite and ask them to address, which was a March
25
2011 case, they say they've trained the HSU on that as well.
FR
13:40:40
13:41:28
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4708
And so we might talk a lot about the constitution --
1
2
the separate constitutional violations that occurred here in
different -- you know, was somebody who was eventually charged
nevertheless overly detained?
All those other issues.
But it doesn't seem to me that there can be any
5
6
question that the MCSO has volunteered from the get-go, as a
matter of policy, after -- it appears, perhaps -- consultation
with Sheriff Arpaio, that they got no authority to detain
anyone, if they don't have a state charge for them, and turn
10
them over to ICE.
13:42:34
I don't know if you have any response to that.
11
MR. MASTERSON:
12
Well, one response is I think they can
13
still enforce, and I think the Court has recognized that they
14
can enforce federal criminal law -THE COURT:
15
THE COURT:
17
cause.
DS
THE COURT:
-- under certain situations.
Absolutely.
And I don't -- did I hear any testimony
that anybody that was detained, for whom they had no state
22
charges, they charged with federal offenses?
IEN
21
23
MR. MASTERSON:
13:42:53
No, sir, and that's not what I'm
24
getting at.
25
release, for example, or you could listen to a statement made
FR
13:42:46
-- but they clearly have to have probable
MR. MASTERSON:
19
20
Yes, but they --
MR. MASTERSON:
16
18
13:42:13
What I'm getting at is you could read a press

13:43:07
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4709
by the sheriff where he may say:
federal immigration law.
I will continue to enforce
Heaven forbid that I sound like Bill Clinton and try
3
4
to tell you, "It depends on what the meaning of the word 'is'
is," but --
THE COURT:
Doesn't it sound a little bit like --
MR. MASTERSON:
THE COURT:
It does.
-- our former president?
MR. MASTERSON:
9
10
13:43:25
It does.
But he can enforce certain
federal criminal immigration law.

THE COURT:
11
All right.
MR. MASTERSON:
12
13:43:32
I take your point.
So let's go back to Exhibit 2538.
What we have here is Sergeant Palmer has prepared some
13
14
training scenarios.
15
the paragraph under Training Directives on page 2 of this
16
e-mail, Sergeant Palmer recognizes that:
17
Deputies and the Supervisors understand the scope to which they
18
are empowered to act in these scenarios, as limits have
19
recently been set by Judge Murray Snow in a Federal court
20
case."
Court's order; we don't see the MCSO defying the Court's order;
23
we see recognition of the Court's order and, again, an attempt
24
to comply.
25
to comply with the court order and not ignore the court order.
FR
13:44:26
Here again, Judge, we don't see the MCSO ignoring the
IEN
22
13:44:03
"It is important the
DS
21
And I think it's important to note that in
Now, what we have is then clear evidence of efforts

13:44:59
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4710
Now, up at the top of page 2 you have Lieutenant Sousa
1
2
writing an e-mail to Mr. Casey:
"Hi Tim.
Give me a call once
you have reviewed the scenarios listed below.
copy you on all these emails so attorney client privilege ..."
et cetera, et cetera -- "... until we get a final training
product out to the troops."
I am going to
Again, this is lieutenant's effort.
13:45:22
Lieutenant
Sousa's goal here is to get training -- and in fact,
Sergeant Palmer's goal -- to get training out, recognizing your
10
specific order and get training to the troops.
11
contacting Tim Casey on January 24, 2012, so that Tim Casey can
12
review the scenarios prepared by Sergeant Palmer.

And this takes us to Exhibit 2540.
13
And he's
13:45:38
And 2540 follows
14
the "Hi, Tim, give me a call" e-mail, and on February 27, so
15
we're a little over a month later, Lieutenant Sousa's again
16
contacting Mr. Casey:
17
the scenarios listed below?"
18
THE COURT:
13:46:15
"Did you ever get a chance to look at
Did anybody ever tell?
I can't tell.
mean, in the testimony, I think plaintiffs are right, I
20
reviewed it again just the other day, Lieutenant Sousa says
21
that he read my whole order and he came to the conclusion that
22
the HSU didn't have to do anything different to comply.
IEN
DS
19
23
24
FR
25
13:46:30
I think that was his testimony, and I don't mean to
misstate it.
If I've misstated it, you can correct me.
MR. MASTERSON:
Well, no.
13:46:54
THE COURT:
1
2
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4711
And I think that it was Casey's testimony
that Sheriff Arpaio told him the same thing.
Is Lieutenant Sousa entitled to a benefit of the
3
4
doubt, and Sergeant Palmer, maybe, entitled to a benefit of the
doubt, that Sheriff Arpaio may not be entitled to, in light of
what we have from testimony from Chief Sands, from Chief
MacIntyre, from Casey himself, about the extent to which they
discussed the scope and the meaning of the orders with Sheriff
Arpaio?
MR. MASTERSON:
10
Well, I think clearly,
11
Lieutenant Sousa and Sergeant Palmer are both entitled to a
12
benefit of the doubt, and are both, frankly, not to be held
13
responsible for fully understanding what it is the Court's
14
order said.
THE COURT:
15
Yeah, I'm -- I think that might be true.
It's odd to me, I gotta tell you, that Lieutenant Sousa issues
17
e-mails that later seem to suggest that he understands it, and
18
understands it correctly, the J.J. Hensley e-mail; and then he
19
issues an e-mail later on saying, Well, he's only ordering us
20
to do something we haven't -- we don't do a whole year later,
21
indicating either deception, possibly, or forgetfulness, or a
22
misunderstanding from the get-go.
IEN
DS
16
23
24
FR
25
MR. MASTERSON:
13:47:21
13:47:38
13:47:58
13:48:22
I certainly don't think it shows
deception, and I don't even think it shows forgetfulness.

THE COURT:
But the J.J. Hensley e-mail, which is a
13:48:39
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4712
correct e-mail, was of, like, June, wasn't it?

MR. MASTERSON:
THE COURT:
Yes, sir.
And then it's the following October when
we have all the allegations that the preliminary injunction's
being violated, and apparently Chief Sands acknowledges that
they're being violated, and so he calls Lieutenant Sousa and he
says:
Lieutenant Sousa sends the same summary you just showed me from
187 back to Jakowinicz and he says, Here's what it is.
10
MR. MASTERSON:
THE COURT:
12
He does.
I think it's consistent -- and, Judge,
fortunately, I'm coming right up to this part.

THE COURT:
I'm sorry.
Would you rather I let you go
MR. MASTERSON:
I always appreciate that, but let
me -- let me move up, and I think I will get to your -- I'll
20
get to your question very quickly here.
21
certainly an inference that can be drawn as to why this might
22
have happened.
IEN
DS
19
23
THE COURT:
24
MR. MASTERSON:
FR
13:49:24
in peace instead of asking my questions?
18
25
13:49:12
How is the October e-mail consistent with
MR. MASTERSON:
16
17
We're
the June e-mail?
14
15
And
not violating it, anyway, or something like that, right?
11
13
Let's get training out on this again.
13:48:53
And I think it's
13:49:39
All right.
Tim Casey's response at Exhibit 2540
is that he has not reviewed the scenarios prepared by
13:49:58
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4713
Sergeant Palmer and forwarded by Lieutenant Sousa, and
unfortunately, things come to an end there.
further.
THE COURT:
4
5
It never goes
Right, as far as we know by memos.
But
Casey says he called Palmer, right?

MR. MASTERSON:
He did.
13:50:21
He says he called.
I think it's clear from what we have seen that
7
8
Lieutenant Sousa, Sergeant Palmer, and MCSO, is trying to
comply with your order.
They're attempting to develop training
10
scenarios to comply with your order.
11
clear that they did not comply with your order.

THE COURT:
12
It's also, unfortunately,

Again --
There isn't any question, I mean, even
13
Palmer says from the -- right after the get-go they're having
14
these training operations where they're still pulling people
15
into Enforcement Support, questioning them for several hours,
16
and then if they don't have the charge they call ICE.
17
you said, in that one instance where he had a confrontation
18
with Sheriff Arpaio he called ICE, and then he called -- so
19
they're still doing the same operations, right?

MR. MASTERSON:
DS
20
They're still -- well, some of the
22
taken, with respect to people who are being detained without
IEN
operations they are conducting, admittedly, by the actions
23
state criminal charges or state federal charges, they're
24
violating the Court's order.
25
THE COURT:
Yeah.
13:50:56
And like
21
FR
13:50:38
And they're also violating the
13:51:12
13:51:32
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4714
Court's order to the extent that they're just holding people
without probable cause even of a state crime, right, or of
sufficient suspicion.
some point, under the Constitution they don't have the right to
hold them for any time if they don't have reasonable suspicion
as to that person being engaged in a state crime.

MR. MASTERSON:
7
8
THE COURT:
No, if they have -- we're in the Terry
Right.
MR. MASTERSON:
10
If they have that reasonable
THE COURT:
Right.
But if they don't have that
reasonable suspicion, they can't detain them.

MR. MASTERSON:
14
THE COURT:
15
You're correct.
And if they detain them wrongfully, and
16
then develop reasonable suspicion and probable cause and charge
17
them, they've still had their constitutional rights violated,
18
haven't they?
MR. MASTERSON:
19
21
13:52:16
But what we see through the exhibits
and e-mails from Lieutenant Sousa, Sergeant Palmer, and
23
Mr. Casey, is anything but willful noncompliance; anything but
24
attempts to thwart this Court's orders.
25
Arpaio -- well, both Sheriff Arpaio and Chief Sheridan have
FR
13:52:06
I believe they have.
Okay.
MR. MASTERSON:
IEN
22
THE COURT:
DS
20
13:51:58
suspicion, certainly they can stop/detain/question.
12
13
13:51:48
stop situation.
11
Even if they end up charging them at
And again, Sheriff

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4715
admitted and taken responsibility for that failure.
You've heard all the testimony about whether Chief
2
3
Sheridan was involved in the preliminary injunction at this
point, and I'm not going to rehash that because he clearly has
accepted the responsibility, and so has the sheriff.
stops there.
The buck
We've heard the phrase "The buck stops here."
7
8
Truman, I think, had it on his desk.
there, and there, and they admitted that.
They admitted that
to the Court and they stand by that today.
11
not intentional and was not willful.
12
to occur, follow-up that needed to occur, did not occur.
But again, it was
Communication that needed
When Mr. Casey forwards this e-mail -THE COURT:
15
read it?
Can you enlarge it a little bit so I can
When Mr. Casey sends his e-mail on
18
December 23rd, 2011, to MCSO -- I'm referring to paragraph 5
19
here, Judge.
20
is mine; it's not in the exhibit.
DS
And by the way, the highlighting and underlining
THE COURT:
You mean the red -- the yellow and the
23
MR. MASTERSON:
24
THE COURT:
25
MR. MASTERSON:
FR
13:54:08
red?
IEN
22
13:53:50
Thank you.
MR. MASTERSON:
17
21
13:53:21
And now I'm going to go back to 187 just briefly.
13
16
Harry
Well, the buck stops
10
14
13:53:03
Yes.
Okay.
But the bolding is Casey's.
The bolding is Casey.
And I think I
13:54:16
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4716
even note a couple, they appear to be italicized, maybe, I'm
not sure, but --
THE COURT:
Those are Casey's if they are.
MR. MASTERSON:
THE COURT:
Okay.
MR. MASTERSON:
Correct.
13:54:27
The yellow and the red lines are me:
"The Court is enjoining the MCSO 'from detaining any
7
8
person based solely on knowledge, without more, that the person
is in the country without unlawful authority.
To be clear, the
10
Court is not enjoining MCSO from enforcing valid state laws, or
11
detaining individuals when officer have reasonable suspicion
12
that individuals are violating a state criminal law.
13
it is enjoining MCSO from violating federal, --'"
14
I'm not sure that comma should be there.
Instead,
"-- violating federal, rights protected by the United
15
16
States Constitution in the process of enforcing valid state law
17
based on an incorrect understanding of the law."

Well, what does that mean?
18
19
come to mind.
20
Judge Snow?
21
mind is:
Now, a couple questions
What does that mean to you,
DS
But a more pertinent question that comes to my
13:55:33
What does this mean to a cop?
23
pretty clear that Sergeant Palmer did not understand the
24
Court's order, and I think that is without question.
25
the phrase "solely on knowledge, without more, that the person
FR
13:55:12
And you just pointed out a few minutes ago that it's
IEN
22
One question is:
13:54:47
And just
13:56:01
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4717
is in the country," assuming that's supposed to be "without"
lawful authority.
THE COURT:
What do I do about Casey's testimony that
within a week or two after the order was entered, he developed
the rubric that he used to discuss with Maricopa County "arrest
or release"?
MR. MASTERSON:
Well, I think you refer to
Lieutenant Sousa, who sat right up there and told you rather
adamantly that he never heard that phrase until he heard it in
10
this courtroom.
THE COURT:
11
13:56:39
Well, that may be true, but there are a
12
couple of things that bother me about that testimony.
13
Can I share with you what they are?

MR. MASTERSON:
14
THE COURT:
15
Absolutely.
The first is, it seems to me that if I
16
look at 2533, Casey didn't have any communications with Sousa
17
after, like, late December.
18
his testimony that he hadn't yet developed that rubric that he
19
then would have subsequently used in describing this to Sheriff
20
Arpaio, and Sheriff Arpaio does not deny that Casey used that
21
rubric in discussing it with him.
DS
And that may be consistent with
23
testimony really causes me to question a little bit the
24
accuracy of Lieutenant Sousa's testimony.
25
correctly, he said something to the effect that he asked -- he
FR
13:56:46
13:57:05
The other problem I have with Lieutenant Sousa's
IEN
22
13:56:21
Because if I recall
13:57:24
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4718
said it was his understanding then that as long as they called
ICE during the initial stop, it became ICE's arrest and not
their arrest, and they could hold them for as long as they
wanted.
Well, I don't believe that, and I don't believe it for
5
6
a couple of reasons.
which was revoked.
of Jakowinicz, Trowbridge, and Palmer, who all tell me that is
not the way that HSU did their stops; that they brought in
10
everybody and they questioned them in Enforcement Support.
11
Palmer even testified that it was Sousa that told them they
12
could do that.
One of the reasons is that's just 287(g),
The second reason is I've got the testimony
And
14
asking Casey if that was okay it made any difference when it
15
wasn't the way HSU was operating, even if it was true.
16
didn't testify that Casey gave him any advice.
17
Lieutenant Sousa testified that he would -- at the very same
18
moment, that he would have to defer to Trowbridge and Palmer
19
about how stops were made, and that had been their previous
20
testimony.
21
question to Casey would make any sense when it wasn't how HSU
22
was doing the stops in the first place.
And he
DS
IEN
Do you understand me?
24
MR. MASTERSON:
13:58:23
And I think
So it doesn't seem to me like Sousa asking that
23
FR
13:58:07
And so I don't see how Lieutenant Sousa thinks by
13
25
13:57:38
13:58:45
I do, and here's where I think the
explanation is, or at least it's a possible explanation, and I
13:59:00
think a valid inference that this Court could draw.

Exhibit 2512, that's Mr. Segura's letter.
THE COURT:
October letter?
MR. MASTERSON:
THE COURT:
5
6
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4719
later.
October 11, 2012.
Yeah, thanks.
MR. MASTERSON:
Of October --
October 11, 2012.
So we're talking 10 months
And in that letter Mr. Segura outlines
three alleged violations of this Court's preliminary
injunction.
THE COURT:
10
11
I think we can safely say they're
MR. MASTERSON:
13
"alleged" in there.
14
THE COURT:
Yeah, maybe I shouldn't have thrown
Okay.
MR. MASTERSON:
15
But what's more informative, Your
16
Honor, is 2514, and that's Tim Casey's response.
17
response to Mr. Segura -- and this starts --
18
21
IEN
22
blank.
Kathleen, for some reason the screen is
MS. McGEE:
I took it down, Your Honor.
THE COURT:
Oh, you took it down.
14:00:06
Okay.
You can put it up if it's admitted in evidence.
23
You're waiting for his signal?
24
MS. McGEE:
Yes.
25
THE COURT:
Okay.
FR
13:59:52
Tim Casey's
THE COURT:
DS
20
13:59:43
violations of the Court's preliminary injunction at this point.
12
19
13:59:22
14:00:31
MR. MASTERSON:
MS. McGEE:
Did I give some signal?
Hold on.
MR. MASTERSON:
3
4
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4720
I'm on 2514.
Which page?
That's a good question.
The first
page of the letter.
(Pause in proceedings.)
MR. MASTERSON:
14:00:49
The first paragraph of the letter
discusses the accusation, which we've now agreed on was true,
that my -- it accuses my clients of apparent violations of the
Court's December 23, 2011 injunction.
The accusation lacks
10
merit.
11
indicates that no violation of the Court's December 23, 2011
12
injunction.
13
outlines why.
And then on the next page, page 2, Mr. Casey
THE COURT:
15
Right.
But I assume it's his underlining,
14:01:36
or is it your underlining?
MR. MASTERSON:
17
THE COURT:
18
His underlining.
Okay.
MR. MASTERSON:
19
Thanks.
"HSU contacted ICE concerning these
two individuals reasonably believed to have illegally entered
21
the United States.
22
of the individuals but directed HSU to contact U.S. Border
IEN
DS
20
14:01:48
ICE advised that it would not take custody
23
Patrol regarding federal handling and custody of the two
24
individuals.
25
Agent Hernandez at Ajo, Arizona, who directed the MCSO to
FR
14:01:11
Again, Judge, this is my highlighting.
14
16
My investigation and review of the three events
HSU immediately contacted U.S. Border Patrol

14:02:11
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4721
deliver these suspects to U.S. Border Patrol at a specified
meeting pointed.
Court's December 23, 2011 injunction."
4
5
THE COURT:
MR. MASTERSON:
THE COURT:
10
Well, we agree that there is still a
violation of the injunction, correct?
Accordingly, there is no violation the
14:02:27
We do.
And that is Casey's position, is that --
MR. MASTERSON:
That's his position.
And I'm not
going to read paragraphs 2 and 3, but I am going to move to

page 3.
11
14:02:37
THE COURT:
What do I do about his testimony that he
12
didn't think that that was a prevailing position but he argued
13
it because it was the best he could in good faith?
14
MR. MASTERSON:
That may well have been his thought,
15
but it was a good faith belief that that was a valid legal
16
position that could be taken.
17
And I want to move down to page 3 of the document and
18
the paragraph beginning:
19
events/cases did the MCSO detain any individual based on
20
knowledge or reasonable suspicion that he was unlawfully
21
present in the United States" -- my underline -- "without more.
22
Rather, MCSO moved swiftly in each case to determine whether
IEN
DS
"In none of the foregoing three
23
state charges could be brought and, if not, to obtain and
24
comply with the direction of federal agents regarding
25
individuals."
FR
14:02:49
14:03:18
14:03:36
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4722
Judge, I think you can draw an inference, based upon
1
2
what we've heard from all the witnesses, that my clients were
not told "arrest or release."
THE COURT:
MR. MASTERSON:
THE COURT:
6
7
10
This is okay.
Why should I draw that inference?
MR. MASTERSON:
that was discussed.
THE COURT:
Because, I mean, this is information
Copies of these letters were passed on to
Well, isn't that contrary to the testimony
MR. MASTERSON:
THE COURT:
14
In which regard?
He said he hadn't seen the letter, this
15
letter, until he was preparing for I think it was his September
16
deposition of this year.

MR. MASTERSON:
17
Sheriff Arpaio himself.

THE COURT:
19
21
But what I'm saying is it's --
Well, I missed your point, I'm sorry,
MR. MASTERSON:
14:04:28
-- it's not too difficult to believe
that the communications between Mr. Casey and my clients were
IEN
22
23
something other than the clear arrest or release, because
24
Mr. Casey had a good-faith belief that they could do what he
25
references in his letter to Mr. Segura.
FR
14:04:15
No, I agree with that, with respect to
then.
DS
20
14:04:03
of Sheriff Arpaio?
13
18
14:03:49
Tell me
members of MCSO, members of command staff --
11
12
What they were told is:
why I should draw it.
8
9
I think I could draw that inference.
It's not too big of a
14:04:48
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4723
leap to suspect that he relayed or communicated that
information to my clients, as opposed to arrest or release.
And I think another indicator of that again comes from
3
4
Lieutenant Sousa's testimony.
perhaps there's a timing issue about when he had discussions
with Lieutenant Sousa, but had he communicated arrest or
release, we wouldn't even need training scenarios.

THE COURT:
8
9
10
And the Court may be right that
Is there any indication that Mr. Casey had
any knowledge at all of what HSU's operations actually were at

this time?
14:05:31
MR. MASTERSON:
11
THE COURT:
12
Well, I guess the --
It seems to me that Lieutenant Sousa
13
testified he read the injunction and he went to Casey, and I
14
think he testified he also went to Sheriff Arpaio, said:
15
don't think we need to change anything.
14:05:46
Now, it may be that Sheriff Arpaio knew differently; I
16
17
don't know, I'm going to have to decide that.
18
for a moment that that was certainly Lieutenant Sousa's good
19
faith belief.
20
a lawyer.
21
educating somebody who's not a lawyer what they can and can't
22
do.
But I'll accept
And I will also accept, as you've said, he's not
IEN
DS
That language isn't particularly helpful in
23
The only other problem I have with that, though, is --
24
as long as we've discussed the earlier chronology -- as soon as
25
I sent out my prehearing questions on the preliminary
FR
14:05:09
14:05:58
14:06:11
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4724
injunction, 2533 says the very next day Mr. Casey's consulting
with Lieutenant Sousa about those questions, or it seems to say
those questions.
Lieutenant Sousa about the questions, Lieutenant Sousa's very
aware of the difference between federal immigration law and
state criminal charges.
MR. MASTERSON:
10
I do.
But to put it -- to put it
quite succinctly, Judge, what we needed here is this order

needed to be explained.
THE COURT:
11
And it needed to --
14:06:47
I agree.
MR. MASTERSON:
12
-- be thoroughly explained.
And I
13
think -- and it's great to sit here, and, you know, we've had
14
20 -- what, 20 days to think about it?
15
had -- I've had 16, I think, 16 or 17; you've had 20 and a lot
16
longer than that to consider these issues.
Well, I've had.
You've
18
I am, and it's 20/20 hindsight, but I think it's clear that the
19
Court's order needed to be explained.
20
thoroughly explained to my clients from the top down, in one
21
way or another, and I think it needed to be explained in
22
writing.
FR
25
It needed to be
DS
IEN
24
14:06:58
So we're all doing the armchair quarterback, at least
17
23
14:06:30
Do you understand what I'm saying?
And so if he is consulting with
saying:
14:07:14
We didn't need a phone call to Sergeant Palmer
Hey, your scenarios are screwed up.

THE COURT:
I grant you that, and so again, that may
all militate in favor of Lieutenant Sousa; it may all militate
14:07:29
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4725
in favor of Sergeant Palmer.
favor of Chief MacIntyre, I'm not sure it militates in favor of
Chief Sands, I'm not sure it militates in favor of Chief Deputy
Sheridan, and I'm not sure it militates in favor of Sheriff
Arpaio, to the extent that they were all advising each other:
You can't do this.
Unless you're going to contest that testimony, and I want to
listen if you are.
And they were.
MR. MASTERSON:
I'm not sure it militates in
That's the testimony.
No, I'm not going to contest the --
10
I'm not going to contest the testimony.
11
point out is that I think that it's quite clear that there were
12
misunderstandings on what that court order meant from the folks
13
sitting at this table and from other people who aren't here
14
today.
15
they might have stated they knew at one time, many of them were
16
just flat wrong.
What I'm trying to
Well, Chief Sands wasn't wrong in what
19
MacIntyre wasn't wrong, if what he testified to was correct.
20
And I don't think -- I mean, again, point out to me if I'm
21
wrong, but I think Sheriff Arpaio said:
22
didn't tell me any of those things.
DS
he -- if what he testified to is true, he wasn't wrong.
IEN
14:08:19
My point is, Judge --
18
Chief
14:08:40
I can't say that they
In fact, he acknowledges
23
that Chief Sands told him some things, and he acknowledges that
24
Chief MacIntyre told him some things, so what do I do with
25
that?
FR
14:08:02
And regardless of what they thought they knew, or what
THE COURT:
17
14:07:51
14:08:58
MR. MASTERSON:
1
2
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4726
Well, I guess you apply your standard
here, clear and convincing.

THE COURT:
Okay.
MR. MASTERSON:
And I think the clear-and-convincing
standard doesn't let you get near intentional action here.
I think it's certainly reasonable that there were
miscommunications made to Sheriff Arpaio, Chief Sheridan, and
others as to what could lawfully be done under this court
order.
10
And I think several people had different understandings
of what could be done under this court order.
12
intentional wrongdoing, intentional efforts to thwart the
13
Court's order, intentional efforts to defy the Court's order,
14
because the evidence -- and again, it's Lieutenant Sousa and
15
Sergeant Palmer, from what we looked at here so far, they're
16
trying to comply.
17
tried to stop them from doing this.
18
been exactly the opposite.
14:09:48
And there's been no testimony that anybody
In fact, the testimony has
So Mr. Young raised an interesting point, and I think
19
he's correct.
21
affirmative advice.
22
he's correct:
IEN
DS
20
He said it's undisputed that there was no
14:10:13
I'm not sure he meant it the way I do, but
There was not appropriate advice given to MCSO
on how to comply with this Court's order.
24
THE COURT:
25
point worth my consideration.
FR
14:09:30
But what you don't have, I think, is evidence of
11
23
14:09:08
Well, again, that -- I think that's a

But what do I do about Casey's
14:10:41
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4727
testimony, that seems to be confirmed by at least some of the
documentary evidence, that Sheriff Arpaio told him:
have to change our method of operation at all because we're not
turning people over to ICE any more.
We don't
I mean, if he was told that by Sheriff Arpaio,
5
6
wouldn't he treat these training scenarios as he's testified?
I thought that was valuable, I thought it was a good idea, but
I didn't think it was an immediate necessity, because I'd been
told by everybody at MCSO that they weren't doing anything that
10
violated the injunction.

MR. MASTERSON:
11
14:11:22
Well, I suppose that that again -- I
12
mean, I guess it depends on the -- at the time these
13
communications occurred -THE COURT:
14
16
Um-hum.
MR. MASTERSON:
15
-- between Mr. Casey, and, for
THE COURT:
Well, one is dated January 4th, when he
18
tells him, Sheriff Arpaio -- you remember, he sends this
19
e-mail.
MR. MASTERSON:
THE COURT:
I don't --
Yes.
-- know the exhibit.
14:11:50
But he sends the
email, I think, to MacIntyre and Sands, and he says:
IEN
22
You remember the one I'm talking about?
DS
21
Sheriff
23
Arpaio wants us to appeal the injunction, even though it
24
doesn't have -- even though he acknowledges it doesn't have any
25
significant operation on -- or any effect on MCSO operations.
FR
14:11:36
example, Sheriff Arpaio.
17
20
14:11:02
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4728
Isn't that -- I mean, we don't have any testimony that
1
2
MacIntyre or Sands ever refuted that.
And isn't that testimony
that -- I mean, again, it's only inferential, like all of this
is, and I agree that I think I can draw the inferences you've
suggested.
14:12:15
But isn't that a contrary inference that suggests that
6
7
Casey did believe, and had been told by Sheriff Arpaio, that
there was no real effect on MCSO operations due to the
preliminary injunction?
10
MR. MASTERSON:
Which was just wrong.
Well, that's possible.
But what else
11
is possible is that Tim Casey had led the Sheriff's Office to
12
believe and Sheriff Arpaio to believe that you -- okay, you
13
can't detain someone without state criminal charges, but if ICE
14
asks or CBP says, Give them to us, you can do that, because
15
that's what he said in his letter.

THE COURT:
16
14:12:57
Okay.
MR. MASTERSON:
17
We all again -- and today we know you
can't do that.
19
Exhibit 2514, that's a good faith position.
20
faith position for a lawyer.
21
it's certainly a good faith position for a cop.
DS
18
But referencing Tim Casey's letter again,
THE COURT:
IEN
22
That's a good
So I request that you accept that
14:13:24
Okay, let me ask you one more question on
23
that.
24
verified, that anybody at Border Patrol or ICE actually
25
requested that such people be transferred, and he said no, he
FR
14:12:33
I did ask Mr. Casey if he'd ever seen, or ever had
14:13:47
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4729
just was taking his client's word for it.
Do we have anything in the record -- even though I
2
3
think you know it wouldn't have made any difference.
would have violated the injunction, but I think it would make
your point stronger -- do you have any evidence in the record
that they received such direction?

MR. MASTERSON:
7
8
It still
To my knowledge, there's no such
evidence in the record.

THE COURT:
Okay.
MR. MASTERSON:
10
11
his letter:
12
indicates no violation.
Thank you.
All we have is Mr. Casey telling us in
My investigation and review of the three events
THE COURT:
14
Let me ask about one more thing, because I
15
think it's only fair -- it's something that's occurred to me,
16
and I think it's only fair to have you address it.
that were entered -- they weren't letters, they were
19
memoranda -- entered in his appeal, I mean his name clearing
20
hearing, where he sets forth pressure that he received from
21
Sheriff Arpaio, Sheriff Arpaio's interest in HSU operations,
22
his awareness, his concern, the fact that he loved the
IEN
DS
18
FR
25
14:14:43
You know in those letters that Lieutenant Sousa did
17
24
14:14:14
I talked about Exhibit 103 --
13
23
14:14:04
14:15:02
publicity, you know the letters I'm talking about?

MR. MASTERSON:
I do -- vaguely.
them to you, but I do recall the letters.
I couldn't quote
14:15:22
THE COURT:
1
2
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4730
Is there any evidence that suggests that
Lieutenant Sousa has misstated the facts in those letters?

MR. MASTERSON:
THE COURT:
None.
Do you concede that the facts as stated by
Lieutenant Sousa as to HSU, its operation, Sheriff Arpaio and
Chief Sands' interest in HSU, are correctly stated in those
letters?
MR. MASTERSON:
8
9
I do not contest that Sheriff Arpaio
was interested in HSU activities; I do not contest that
10
Lieutenant Sousa knew that Sheriff Arpaio was interested in HSU
11
activities; I do contest that Sheriff Arpaio intentionally
12
violated this Court's order by telling HSU to ignore or defy -THE COURT:
13
THE COURT:
15
-- the Court's preliminary injunction.
I don't think that -- I don't think
16
there's any affirmative evidence to that effect, or at least
17
any positive testimony.
18
it's only an inference.
19
MR. MASTERSON:
with Mr. Casey.
21
look at paragraph 1 --
DS
20
IEN
23
I discussed Exhibit 103 just briefly
14:16:25
This is the brief -- the May 28
Briefing Board?
24
MR. MASTERSON:
25
THE COURT:
FR
14:16:09
It may be an inference, but again,
And the reason I did that is because when I
THE COURT:
14:15:53
No, I don't --
MR. MASTERSON:
14
22
14:15:34
Yes, sir.
Thank you.
14:16:39
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4731
MR. MASTERSON:
"By order of Sheriff Arpaio, effective
immediately, no MCSO personnel shall detain any person for
turnover to ICE unless probable cause to arrest or detain
exists under Arizona Criminal Law."
Mr. Casey and I just chatted briefly about perhaps
5
6
maybe it should have said any federal authority rather than
just ICE, but the bottom line here, Judge, is if the
communication was arrest or release, this is it right here, and
that didn't happen.
10
THE COURT:
All right.
And I don't think, by the way,
11
just so we're clear -- and I'm going to say this for
12
plaintiffs' benefit if they want to say something on rebuttal.
13
I don't think there is an allegation that after I entered my
14
findings of fact, which was just before this in the trial,
15
there's been any violation of that order.

MR. MASTERSON:
16
I agree, Judge, and I feel that is
accurate, too.
18
or release is the opinion held by counsel back on December 23,
19
2011, this is what should have been done.

THE COURT:
Well, it should have been done, but
MR. MASTERSON:
No, but counsel can write one out.
23
And counsel can send a letter, an e-mail that says:
24
arrest or release.
25
Judge Snow's December 23rd order.
FR
14:17:47
counsel can't issue Briefing Boards.
IEN
22
The point I'm trying to make here is if arrest
DS
21
14:17:11
14:17:26
17
20
14:16:53
Here's
Here's what you need to do to comply with

Do it.
That never happened.
14:18:01
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4732
I've hit this pretty hard because I think it's an
1
2
important issue, and I know the Court thinks it's an important
issue.
THE COURT:
As it relates to
this issue, can I consider the credibility of Chief Deputy
Sheridan and Sheriff Arpaio as it relates to other matters that
we've discussed?
misstated the facts under oath, can I use that in determining
whether or not they should be given -- their testimony should
10
If I, for example, determine that they have
be given credibility here?

MR. MASTERSON:
11
14:19:11
I think the Court can draw all
12
reasonable inferences as to credibility of any witness based
13
upon the witness's testimony on any issue.

THE COURT:
14
Okay.
MR. MASTERSON:
15
Thank you.
Here the evidence is that Sheriff
16
Arpaio and Chief Sheridan did not intentionally violate this
17
Court's preliminary injunction; in fact, no one at MCSO
18
intentionally violated this Court's preliminary injunction.

THE COURT:
19
21
deputy -- I'm going to look at the facts on Chief Deputy
22
Sheridan, but I will concede that whatever those facts
IEN
DS
there's -- I mean, I don't know that I agree that chief
23
demonstrate, they don't demonstrate that he had the level of
24
involvement that Chief Sands did.
FR
14:19:33
Do you know, I gotta say, I don't think
20
25
14:18:45
How can I reconcile what Chief Sands' knowledge was
14:19:49
14:20:06
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with what he did?
he provided any guidance of any kind to Lieutenant Sousa other
than:
Don't violate the injunction.
Is there any other testimony than that?
MR. MASTERSON:
5
6
There doesn't seem to be any testimony that
I am not aware of any further
14:20:22
testimony on that particular issue.

THE COURT:
And he was aware of the training.
But if
he says that he doesn't disagree with the testimony of Casey,
and Casey talks about all of these discussions he had with
10
Chief Sands, and Chief Sands talks about what he told Sheriff
11
Arpaio, and what Sheriff Arpaio knew, how can you tell me that
12
Chief Sands -- and maybe Sheriff Arpaio, but I'm focusing on
13
Chief Sands right now -- how can you tell me there's no
14
evidence that Chief Sands didn't intend in an affirmative way
15
to ignore the order of this Court?

MR. MASTERSON:
16
this, is the question directed toward -- well, several
18
witnesses, but Chief Sands in particular, and you just
19
referenced it:
20
testimony?
21
witness.
22
half?
Do you agree or do you dispute Tim Casey's
IEN
DS
My opinion is that's an unfair question to any
14:21:23
I mean, Tim Casey testified for, what, a day and a
23
THE COURT:
24
MR. MASTERSON:
FR
14:21:04
Well, first, and I wanted to address
17
25
14:20:41
It's certainly not very specific.

And to require a witness to answer one
question of, Well, is everything that guy said up there on
14:21:37
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4734
those two days correct, accurate, to the best of -THE COURT:
You didn't object, though, did you?
MR. MASTERSON:
THE COURT:
Just because you object to most questions?
MR. MASTERSON:
THE COURT:
Just because I object a lot.
I may have waived an appeal right on
that particular question, but I don't think I waived and I
don't think the Court -- I think the Court can still consider
10
whether that's a fair question.

THE COURT:
11
14:22:09
I think I can, too, but he -- even if that
12
isn't -- even if I don't draw a whole lot from that, even if I
13
only draw a little bit from that, Chief Sands had no
14
recollection to dispute what Mr. Casey said, right?

MR. MASTERSON:
15
THE COURT:
16
17
THE COURT:
23
24
FR
25
14:22:23
I mean, he didn't -- he
Correct.
And so he didn't have any recollection to
DS
dispute Mr. Casey's testimony, right?

MR. MASTERSON:
THE COURT:
IEN
22
Which was when?
MR. MASTERSON:
19
21
He did.
said he didn't have any recollection.
18
20
14:21:49
If you didn't object, did you waive it?
MR. MASTERSON:
I probably did.
14:22:35
That's correct.
Okay.
MR. MASTERSON:
Let's talk about Chief MacIntyre just
briefly here.
THE COURT:
What do I do about -- well, I'll let that
14:22:46
go.
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4735
I'll let you go.
I'll let you speak some.
MR. MASTERSON:
Thank you.
I think the evidence is pretty clear that Chief
3
4
MacIntyre really didn't have anything to do with the
THE COURT:
I mean, Tim Casey --
No, I think that's wrong.
14:23:07
I think the
testimony is extremely clear that Chief MacIntyre was involved
in this up to his eyeballs early on.
I don't know that there's any testimony that Chief MacIntyre
Where you may prevail is
10
had any position that would have allowed him to direct HSU
11
deputies or MCSO patrol deputies to do anything about this
12
order.
13
that one.
15
If you want a winning argument, you might want to make
MR. MASTERSON:
14
Well, let's go with that.
There's no
dispute that Chief MacIntyre got the order -THE COURT:
16
dispute -- well, there is contrary testimony, but I gotta tell
18
you, I think the great weight of the evidence is that Chief
19
MacIntyre was involved in this case from the beginning.
DS
He received all the correspondence; Casey consulted
with him all the time; he was at the preliminary injunction
22
hearing itself; Casey's billing records indicate how much he
IEN
21
23
was involved; he himself acknowledged that Sheriff Arpaio got
24
his advice.
FR
25
14:23:42
And there doesn't seem to be any real
17
20
14:23:23
That is not an argument that your predecessor counsel
14:24:00
14:24:15
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4736
made.
when we were talking about whether or not Chief MacIntyre's
inclusion on these letters constituted a waiver.
she made that.
instances in which he was involved, and it was her duty to do
it, but the great weight of the evidence is he was involved,
isn't it?
10
I don't think
She certainly didn't assert all of these
MR. MASTERSON:
8
9
I mean, it was her duty, your duty to make the argument
The weight of the evidence is he knew
of the order and actually communicated certain information

about the order to others.
THE COURT:
11
14:24:48
What do I do about Ms. Iafrate's
12
representation to me that it was his job to make sure that
13
Chief Deputy Sheridan knew about the order?

MR. MASTERSON:
14
Well, I think we have to go back to
15
the fact that Chief MacIntyre had no authority he could exert
16
over the law enforcement side of MCSO to do anything to comply
17
with the Court's order.

THE COURT:
18
20
Deputy Sheridan?
DS
pertains to Chief MacIntyre, but what does it do for Chief
MR. MASTERSON:
14:25:36
I don't think -- well, I mean, clearly
we have evidence of e-mails that were sent to Chief Deputy
IEN
22
23
Sheridan about the preliminary injunction.
24
Sheridan even acknowledges:
25
things I was dealing with at the time --
FR
14:25:09
I think that that may be right as it
19
21
14:24:36
And Chief Deputy
Look, I had a whole bunch of other

14:25:55
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4737
THE COURT:
What do I then do with Sheriff Arpaio's
deposition testimony that he delegated to Chief Deputy Sheridan
and to Chief Sands the responsibility to comply with the
preliminary injunction?
MR. MASTERSON:
Well, I think one thing you do is
recognize that Chief Sheridan stepped up and said:
accepting responsibility for that.
was my responsibility.
it; I had other things I was dealing with at the time.
14:26:09
Hey, I'm
I'm the chief deputy.
It
I didn't see it; I wasn't involved in
I had a
10
hundred million dollars that had been misallocated I was
11
dealing with; I had a hostile board of supervisors I was
12
dealing with; I had a whole bunch of other issues.
13
deputies who had been shot.
I had
Despite that, I don't think Chief Deputy Sheridan got
14
15
up there and told you that he used that as an excuse.
16
accepted -- he accepted the fact that as chief deputy, he was
17
responsible for seeing to it that your order was complied with
18
by folks on down the line.
You
Court in that area, because Chief Deputy Sheridan -- Chief
21
Deputy Sheridan accepts his responsibility in that area.
DS
20
All right.
IEN
23
14:27:14
I know you'll be sad that I'm moving away
from the preliminary injunction now, and I'm going to cover --
24
THE COURT:
25
save you some time.
FR
14:26:50
So I don't know that there is any dilemma faced by the
19
22
14:26:31
Let me ask just some things that might

Do you contest anything about all kinds of
14:27:54
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4738
discovery that should have been provided that wasn't, and some
of which has now been destroyed?
MR. MASTERSON:
THE COURT:
anyway.
THE COURT:
THE COURT:
11
It will.
I only had one page on that,
Well, now I'm going to Seattle.
I don't want to go to Seattle, but I'm
14:28:11
going there, anyway.

THE COURT:
12
Nice place.
MR. MASTERSON:
13
Judge, we had a number of discussions,
14
and as the Court's well aware, I objected an awful lot to most
15
of the evidence about Seattle and filed a motion in limine
16
about evidence concerning Seattle.
17
relevant.
18
involving the order to show cause.
14:28:24
I don't think it's
It's just not relevant to any of the issues
Now, the position, I guess, has been taken -- and to
19
an extent I understand it -- that, well, it may show a state of
21
mind of the sheriff.
22
the evidence is clear that specific orders were given to all
IEN
DS
20
But it's still a sideshow, I think.
23
three investigators:
24
it.
25
told you they received that instruction.
FR
14:28:04
Okay.
MR. MASTERSON:
10
It will save you some time.
Well, go ahead.
MR. MASTERSON:
No.
Okay.
MR. MASTERSON:
Do you context any of that?
Do not investigate Judge Snow.
14:28:48
And
Don't do
And they understood that, and every one of them got up and
14:29:19
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4739
THE COURT:
Except, for example, Sergeant Anglin said
that Sheriff Arpaio kept inquiring for as long as he was
involved in the investigation.

MR. MASTERSON:
4
5
given by Mr. Montgomery?

THE COURT:
Well, you know, was that information

Well, let's first --
I'll tell you what.
I mean, the truth is
I think there may be -- this may help your argument, but I'll
tell you what my impression is after listening to all that
stuff.
10
mind.
And I'll listen to your argument, I've not made up my
14:29:53
I think the sheriff, the evidence is pretty good that
11
12
he was involved in some investigation of a conspiracy with the
13
Department of Justice, and in which I played a role,
14
supposedly.
15
relevance in terms of its state of mind about the Court's
16
orders and things.
I'm not sure -- I think there may be some marginal
14:30:10
But truthfully, I'm far less concerned about that than
17
18
I am about what it means about Sheriff Arpaio's willingness to
19
tell the truth when he's on the stand.
20
County has spent, and the plaintiffs have spent, tens of
21
thousands of dollars, and lots of time -- if not hundreds of
22
thousands of dollars, maybe even more than that -- uncovering
IEN
DS
We spent, and the
23
stuff that if he just would have fully disclosed, and Chief
24
Deputy Sheridan would have fully disclosed on the stand the
25
first time, we wouldn't have had to spend all this time about
FR
14:29:36
14:30:28
14:30:51
it.
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4740
And now that there's questions about whether or not
2
3
they've done that, and I will hear you say that they haven't
misrepresented or haven't been more fully forthcoming, but now,
when I say to Sheriff Arpaio, Are you aware of anybody that's
investigated me or my activities? and he says no, and then he
gets back up on the stand and acknowledges that he was aware,
at least that Mr. Montgomery was doing it, and even with
respect to the wiretap, with respect to other things, and he
10
was aware that he was investigating, if I accept his story, my
11
financial records, he's just not -- he has not been fully
12
forthcoming with this Court.
14
forthcomingness, Chief Deputy Sheridan's forthcomingness,
15
whether or not they are truthful is what really gives me major
16
concern about what kind of orders I have to enter to make sure
17
that the plaintiffs' class rights are protected in this matter,
18
and their constitutional rights.
14:31:50
So it really isn't so much, I mean, I'll certainly
19
understand your desire to address it.
21
really -- the Seattle investigation, whether he was
22
investigating me or not, does not mean nearly as much to me as
IEN
DS
20
I'll listen.
But I
14:32:07
whether or not he was truthful about it on the stand.
24
And it seems to me that even if I accept his story,
25
even if I accept all of his story, although I do believe the
FR
14:31:30
And it's one of the areas, frankly, his
13
23
14:31:08
14:32:26
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4741
story changed over time -- and certainly Chief Deputy
Sheridan's story changed over time, it seems to me -- there's
substantial doubt about -- the substantial question is whether
these gentlemen are telling the truth or are they trying to
deceive this Court?
14:32:47
And that ties in to the 1459 IDs, it ties in to the
6
7
disclosure of the 50 hard drives, it ties in to all of those
things that really relate to -- and the 50 hard drives is a
little bit collateral, too -- but it relates to -- how it
10
relates is if they're telling the truth.
11
having us incur hundreds of thousands of dollars, waste a bunch
12
of time, hide violations of members of the plaintiffs' class,
13
as I calculate that into what I need to do to cure the
14
contempts to which they've already admitted.
14:33:05
And so if you really want to get to what interests me,
15
16
Or are they just
that's what interests me.

MR. MASTERSON:
17
Well, on that issue, Judge -- and I
apologize, because I don't know what -- I don't recall what the
19
specific questions were that were asked by the Court, but one
20
of them was --
IEN
22
DS
18
21
THE COURT:
14:33:37
Oh, you mean in that first hearing?
MR. MASTERSON:
23
THE COURT:
24
MR. MASTERSON:
25
THE COURT:
FR
14:33:23
Yes, sir.
I don't even think you were here.

One of them was --
Maybe you were here.
Were you here?
You
14:33:44
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4742
weren't representing --
MR. MASTERSON:
probably sitting back there somewhere.

THE COURT:
investigating me?
One of the questions was:
Are you
14:33:51
Or were you investigating me?
THE COURT:
7
8
Yeah, okay.
MR. MASTERSON:
5
6
Might have been here, but I was
No, it was:
Are you aware of anyone?
Are
you aware of anyone that was investigating me or my activities?

You remember we were playing those little semantical
9
10
games, and so I was pretty careful to make the question very
11
broad.
12
a statement that he filed under penalty of perjury three weeks
13
later saying that I was never the subject of an investigation
14
by the Maricopa County Sheriff's Office, or something to that
15
effect.
And then, even if I didn't have his testimony, I've got
Those things concern me.

MR. MASTERSON:
16
statement.
18
what was Mr. Montgomery doing?
21
THE COURT:
Now,
Are we back to President Clinton again?
MR. MASTERSON:
No, I don't want to -- I don't want to
MCSO was not investigating you.
I don't know -- based
23
upon everything I know and have read and heard, I don't know
24
that Mr. Montgomery was investigating you.
25
claimed to have data --
FR
14:34:34
go there.
IEN
22
You were not a subject of an investigation.
DS
20
14:34:21
Well, I think that's an accurate
17
19
14:34:05
Mr. Montgomery
14:34:53
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4743
THE COURT:
Well, let's just cut right to it.
The
sheriff said that he received -- his testimony was that he'd
received that schematic; he'd received the time lines; that he
was aware that Montgomery was doing those things.
certainly disputed testimony about whether or not he wanted to
further investigate that.
the issue.
There's testimony on both sides of
interested in the fact that I was wiretapped, and he testified
10
that he continued to be interested in that.
11
schematic says I was the one that authorized his wiretap.
12
course, it is not true, there isn't any evidence that it's
13
true, but I think that that is what he himself testified to.
14
So don't you have to deal with what he himself has
15
acknowledged?
THE COURT:
21
I do.
And I'm going to get the
They are important.
MR. MASTERSON:
THE COURT:
investigating me?
IEN
22
Of
They can be
important.
DS
20
14:35:28
Clinton accusation again, but the words are important here.
18
19
Well, that
14:35:48
MR. MASTERSON:
16
17
And --
So I said:
14:36:05
Are you aware of anyone that's
And you are suggesting to me that whatever
23
the sheriff was aware that Montgomery was doing, that doesn't
24
constitute an investigation?
FR
25
14:35:13
But even if I -- the sheriff said, I remained
8
9
There is
What would be the appropriate word I should have used?
14:36:21
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4744
MR. MASTERSON:
Was anybody providing you any
information about me that led you to believe that I was
involved in some conspiracy against you?
But I guess why I'm troubled, Judge, is when I use the
4
5
term "investigation," that's something someone personally is
actively doing, and the sheriff was not doing that.
MCSO was actively investigating you.

THE COURT:
No one at
We had a guy, and --
Well, certainly -- well, go ahead.
MR. MASTERSON:
We had a guy who was providing
10
information for the most part we think now was completely
11
false.
14:37:02
Now, there was some truthful information in there.
12
13
And to this day we don't know how Mr. Montgomery got that
14
information.
15
did have some banking information on citizens in Maricopa
16
County which was verified, he did have information, and the one
17
that truly puzzles me and concerned me a great deal quite some
18
time ago was an e-mail from our firm.
But he did have personal cell phone numbers, he
14:37:25
And all of that taken together, was the sheriff
19
curious?
Was this interesting information?
21
this information that I think should have been followed up on?
22
I do.
IEN
DS
20
Absolutely.
Was
14:37:49
I don't think the sheriff of this county can ignore a
23
claim that someone has hacked, stolen, however you want to
24
phrase it, personal information, including banking information,
25
tax return information, from 150,000-plus citizens of the
FR
14:36:39
14:38:13
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4745
county, and just ignore that.
THE COURT:
Should Sheriff Arpaio have gone to the
United States Attorney instead of the Arizona Attorney General
if he wanted immunity from prosecution for Mr. Montgomery?

MR. MASTERSON:
THE COURT:
I'm sorry, I missed the question.
Sheriff Arpaio went to the Arizona
Attorney General to assist in obtaining some sort of immunity.
Should he also have gone to the United States Attorney and then
turned this matter over to the Department of Justice?

MR. MASTERSON:
10
I think he could have.
Certainly,
11
that's not the only prosecution -- prosecuting agency which
12
could have jurisdiction over a crime such as this.
14
some point from Mr. Zullo, that there was an intention to turn
15
this over to the FBI or the federal -- a federal prosecuting or
16
investigatory agency at some point.
17
there was that information or that testimony did come from
18
Mr. Zullo.
23
That never did occur, but
What do I do about the fact that the
DS
sheriff's attorney is also Mr. Montgomery's attorney?

MR. MASTERSON:
Well, I'm not really sure how that
THE COURT:
Well, it certainly might bear on the issue
24
of whether or not the sheriff wanted to be truthful about
25
Mr. Montgomery's flaws, and the extent of those flaws, and
FR
14:39:20
bears on the issue here, however.
IEN
22
14:39:00
So -- and again --
THE COURT:
19
21
14:38:43
And I think you also heard some testimony, at least at
13
20
14:38:30
14:39:38
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4746
the -- I mean, there's other reasons he might have wanted not
to be truthful, too.
respect to him, and I agree that anybody can be -- he was the
victim of a pretty significant fraud.
come forward with that.
wanted to come forward is not just his own embarrassment, but
the fact that his own attorney was representing Mr. Montgomery
and talking to him throughout all of this with respect to at
least the matters in which he's representing Sheriff Arpaio.

MR. MASTERSON:
10
11
THE COURT:
fact.
And one of the reasons he may not have
Well, I think we're doing significant
Can I draw inferences from it?
I don't think you can draw inferences
THE COURT:
I'm not trying to do that.
17
trying to say Sheriff Arpaio's attorney was also
18
Mr. Montgomery's attorney.

MR. MASTERSON:
19
I think you can certainly draw an
21
forward with information that you were duped by someone.
DS
inference that perhaps it might be a bit embarrassing to come
14:40:41
IEN
But again, the real difficulty with Mr. Montgomery -THE COURT:
Does that bear any relation to whether or
24
not the MCSO looks bad, when they do self-investigation in
25
matters that might have significantly violated the rights of
FR
14:40:29
I'm just
20
23
14:40:17
It is a
of what information may have gone back and forth between --
16
22
14:39:57
It is admitted in evidence.
MR. MASTERSON:
14
15
And he didn't want to
speculation --
12
13
I mean, he apparently was -- with all due
14:41:06
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4747
the plaintiffs' class in this case?

MR. MASTERSON:
THE COURT:
I'm not following that question.
Okay.
If Sheriff Arpaio doesn't want to
come forward and acknowledge information that is embarrassing
to him because it makes him look bad, doesn't it make him look
bad if the MC -- if Internal Affairs investigations into the
MCSO reveal flaws in his operations, including his own
decisions; including the decisions of his chief deputy;
including the decisions of lots of other people that were
10
involved in the Internal Affairs investigations in this matter?

MR. MASTERSON:
11
THE COURT:
12
No, I'm talking about his willingness.
What I'm trying to tie together is his willingness to be
14
forthcoming, to be accountable, so that these matters can be
15
addressed and so that the rights of the members of the
16
plaintiffs' class can be protected.

MR. MASTERSON:
14:41:53
I don't, Judge, and here's why.
First off, I'm not telling you that the sheriff didn't
18
come forward because of some embarrassment; I'm telling you
20
that's certainly an inference I think the Court could draw.

THE COURT:
All right.
MR. MASTERSON:
IEN
22
DS
19
21
14:42:07
I apologize.
But is it embarrassing if somebody who
23
works for you does something wrong or makes a mistake?
24
think that shows --
25
THE COURT:
FR
14:41:39
Does it make him look bad?
13
17
14:41:21
No, I
You don't think the sheriff's pretty --
14:42:25
pretty affiliated with Maricopa County Sheriff's Office?

MR. MASTERSON:
2
3
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4748
I think he's very affiliated, but
everybody makes mistakes.

THE COURT:
And part of running a Sheriff's Office
like that has to be -- it's true.
true.
be a willingness to fully, completely, and independently
investigate and fully acknowledge those mistakes, right?

Absolutely.
And try to correct those
10
mistakes.
11
the level of severe discipline, either.
But that doesn't mean that every mistake rises to
THE COURT:
12
14:42:54
Oh, I agree.
MR. MASTERSON:
13
14:42:39
And part of running a sheriff's office that big has to
MR. MASTERSON:
What you've just said is
And I'm a little bit concerned, since
14
we're on that area, I'm a little bit concerned on the entire IA
15
discussion by Ms. Wang, in that is she now an expert that the
16
Court is going to rely upon -THE COURT:
17
I'll ask you the question I asked her.
18
don't know that I need any testimony to say that naming
19
Chief Olson makes that whole investigation invalid.
Arpaio appoints somebody who directly reports to Chief Deputy
22
Sheridan, who talks to me about if I only knew Chief Deputy
IEN
21
23
Sheridan's heart, and then he testified that he had personal
24
knowledge of some of the facts involved which he thinks
25
verifies Chief Sheridan's version of events which I think are
FR
Do I need expert testimony to tell me that if Sheriff
DS
20
14:43:11
14:43:28
14:43:48
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4749
discredited by the evidence, why do I need expert testimony to
tell me that is an inadequate investigative process?

MR. MASTERSON:
I don't think on that narrow issue you
do.
But if Ms. Wang is the expert, or even the Court -- and
again, I'm not trying to disparage the Court, but -THE COURT:
THE COURT:
I'm open.
I'm open to having expert --
expert testimony on some of these points.

MR. MASTERSON:
11
THE COURT:
12
13
-- if the Court's making -- I
don't think --
9
10
No.
MR. MASTERSON:
14:44:08
14:44:17
I mean, for example --
But I don't -- I don't know that I need
expert testimony on all of these points.

MR. MASTERSON:
14
No, and you may well not.
But if --
15
and I'm just going to throw out an example.
16
about, well, it's always a violation and it's a horrible IA
17
procedure to use leading questions -THE COURT:
18
If we're talking
Well, let me tell you that I have reviewed
already all the testimony and all of the exhibits put in on the
20
Tennyson investigation.
21
to say the Tennyson investigation was a joke.
22
that before.
IEN
DS
19
I don't think I need expert testimony
It was a joke.
14:44:43
I've called it
And all of his leading -- leading
23
questions?
24
that he identified, they're on the predisposition that Chief
25
Deputy Sheridan identified on the stand.
FR
14:44:25
They're leading questions on his predisposition
14:45:02
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4750
He said:
I didn't think this needed to be
investigated.
So when Tennyson goes in there and he asks leading questions
that says this doesn't need to be investigated, it doesn't take
an expert to say that's not an adequate investigation.

MR. MASTERSON:
6
7
But on the flip side, apparently your
THE COURT:
I don't believe that's true.
I think that
he talked about -- there's testimony that said at least some of
10
the monitors did not agree with Chief Deputy Sheridan's
11
determination that this should be a criminal investigation.

MR. MASTERSON:
12
13
THE COURT:
Okay.
MR. MASTERSON:
THE COURT:
17
But criminal investigation is
Right.
But and again, I think the Court can
make decisions in narrow areas.
DS
THE COURT:
But to take some broad --
Well, what do I do -- I'll ask you the
same question I asked Mr. Killebrew:
22
I don't need expert testimony to invalidate anything that
IEN
21
14:45:58
What do I do -- you said
23
Chief Olson did, or maybe Chief Deputy Tennyson or in narrow
24
areas of these investigations.
25
of the members of the plaintiffs' class when I do invalidate --
FR
14:45:46
Okay.
MR. MASTERSON:
18
20
That's what I was referring
different than an administrative investigation, right?
16
19
Agreed.
14:45:32
to, Judge.
14
15
14:45:15
monitors also said it didn't need to be investigated.
8
9
Tennyson said it didn't need to be investigated.
What do I do to cure the rights

14:46:15
if I do -- invalidate those investigations?

MR. MASTERSON:
2
3
THE COURT:
For what?
MR. MASTERSON:
Well, here's why, is because you --
THE COURT:
I'm just talking about the specific rights
of the folks involved.
MR. MASTERSON:
Oh, I understand.
And I understand
10
what you told me about Sergeant Tennyson's investigation.
11
there are also some more broad sweeping terms that we're
12
talking about with respect to leading questions with respect to
13
Ms. Wang's position on statements made to an interviewee about:
14
You did a hell of a job.

THE COURT:
15
Well, I'll read all that.
I haven't read
it yet.
17
leading questions are always inappropriate in an Internal
18
Affairs investigation.
21
names -- Deputy A told me this, this, this, this, this, this,
22
and this happened.
DS
specific incident where a deputy is told -- well, I forget the
IEN
14:46:58
No, and we had a reference to one
20
What do you gotta say about that?
23
inference that plaintiffs want you to draw was:
24
telling this deputy what to say because he --
FR
14:46:37
And I'm not going to make any determination that
MR. MASTERSON:
19
But
I sure admire what you're doing here.
16
25
14:46:24
again, you referred to Sergeant Tennyson's --
7
8
Well, I think you're going to need
expert testimony.
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4751
THE COURT:
14:47:06
The
Well, he's
Oh, I think sometimes he clearly did that.
14:47:24
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4752
MR. MASTERSON:
Maybe, but you know what's really
something that's very important to making that assumption is:
How does this deputy know what he's being told is true?
I can go to Deputy A and say, Hey, Deputy B told me
4
5
you did this, you did this, you did this, you did this, you did
this, and Deputy --
THE COURT:
9
10
You got any circumstances --
MR. MASTERSON:
8
that.
And --
You're right.
THE COURT:
13
Exactly.
I did exactly
Everything he told you is correct.
Anything --
MR. MASTERSON:
12
-- A says:
14:47:53
THE COURT:
11
-- none of that was true.
-- in the evidence that you think
14
demonstrates an appropriate use of leading questions in this
15
case?
16
any one of them that you would assert is the appropriate use of
17
leading questions?
THE COURT:
19
21
Oh.
That's not my question.
Can I tell you right now?
No.
14:48:10
But, I mean, how an interviewer
23
establishes rapport with a witness or a suspect in a criminal
24
situation, how someone uses leading questions in his interview
25
or with a suspect in a criminal situation, I mean, that's
FR
14:47:59
Okay.
MR. MASTERSON:
IEN
22
THE COURT:
Is there
I think any particular question --
No, no, no, no.
MR. MASTERSON:
DS
20
There's lots of evidence of leading questions.
MR. MASTERSON:
18
14:47:43
14:48:29
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4753
something that each interviewer -THE COURT:
Well, you can rest assured that whatever I
do, I'm never going to say:
inappropriate.
I'm not going to say that.
MR. MASTERSON:
Leading questions are always
Okay.
I guess to cut this short, and
I'm going to have to cut it quite short, Judge, I think you can
make certain narrow determinations without expert testimony,
but for any more sweeping decisions with respect to IA
procedures at MCSO, I think that expert testimony is going to
10
be required.
THE COURT:
11
12
that.
14:49:01
Well, that may well be.
I'm not disputing
Let me ask you a question that interests me more,
13
14
though.
15
has -- I know has been preparing evaluations of the adequacy of
16
the investigations.
17
that we'll need that, but if I determine that an evaluation
18
needs to be made as to the adequacy of the investigations, why
19
should we proceed any differently than what I've already
20
outlined we do with respect to monitor reports in this case?
21
Which is he files his report, you file a response, plaintiffs
22
file a response, and I make a determination.
The monitor, as the various IA investigations came in,
DS
IEN
14:49:12
I'm not sure, depending upon my findings,
23
MR. MASTERSON:
24
THE COURT:
25
MR. MASTERSON:
FR
14:48:42
14:49:39
That can be done.
Okay.
Thanks.
I don't want to crunch the other folks
14:49:57
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4754
up here, so we discussed -THE COURT:
2
3
Do you want me to tell you how much time
you've taken?
MR. MASTERSON:
THE COURT:
Just a second.
MR. MASTERSON:
That would be helpful.

Go ahead.
I'm listening.
We discussed briefly the discovery
obligations, and I'm not disputing that there were problems
with discovery obligations early on in this case.

THE COURT:
9
10
It seems to me like there were discovery
obligations later on, too, that there were problems with.
MR. MASTERSON:
12
THE COURT:
13
Okay.
So you have an hour and 20 left.
MR. MASTERSON:
14
Well, I want to give these guys at
least a half hour apiece, so...
14:50:51
I'm going to move --
16
THE COURT:
17
Is there anything -- I mean, I don't think
there's a whole lot of dispute that there were all kinds of
19
discovery of all sorts requested that wasn't provided.
20
that MCSO certainly made some effort that involved considerable
21
manpower resources.
22
it and whether or not I think it violates the order, I'm not
IEN
DS
18
I think
going to contest that there was considerable effort,
24
considerable man-hours spent to recover what they could.
FR
14:51:17
Whether or not I agree with how they did
23
25
14:50:37
You have taken one hour and 25 minutes, Mr. Masterson.
11
15
14:50:11
I don't think there's any dispute that videos have
14:51:34
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4755
been destroyed; audio recordings have been destroyed; driver's
licenses and identifications have been destroyed.

Am I wrong about any of that?
MR. MASTERSON:
4
5
of that.
14:51:54
THE COURT:
I don't think you're wrong about any
What do I do about the ability to draw
adverse inferences?
I mean, I think there's two things at play
here.
went to trial without even the evidence that you've recovered
First, we went to trial with this matter, and plaintiffs
10
and provided to them since.
I think I have, totally
11
independent of any sort of contempt, I think I have a broad
12
ability to make a remedy for that.
And then I think I've already determined in this case
13
14
that I have the ability to draw an adverse inference that
15
results from the destruction of evidence that results from,
16
among other things, Chief Deputy MacIntyre's failure to
17
transmit the preservation letter.
18
I think, as I recall it:
19
transmit -- with the letter, so I didn't do anything.
I didn't know what to do with the
half later, being told for the first time that there was a
22
preservation letter.
IEN
21
14:52:41
And he acknowledges in his testimony that
23
there was all kinds of stuff destroyed in the interim, as does
24
Sergeant Palmer, not with respect to the preservation letter,
25
but talking about that time frame.
FR
14:52:23
And his testimony here was,
Well, and then we have Lieutenant Sousa, a year and a
DS
20
14:52:06
14:52:54
Can't I draw adverse factual inferences from those
1
2
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4756
destructions?
MR. MASTERSON:
Well, here's my general answer to
that.
I think you're permitted to draw adverse inferences.
But at the same time, I think there has to be other and
corroborating evidence for the inferences you seek to draw.

THE COURT:
Well, let me tell you one I'm thinking
about so you can address it.
officers took items as trophies.
We've got testimony that MCSO

And that -- the evidence
10
seems to be, you know, maybe not necessarily all items of great
11
monetary value, although items of significant personal
12
convenience like identification cards and driver's licenses,
13
other things that would make it possible even, for example, for
14
a -- someone here illegally, when they go back to Mexico, if
15
you take their Mexico driver's license, what are they going to
16
do?
17
and there's been an acknowledgment that that's true.
That sort of thing.
20
trophies --
DS
number of complaints when we have that many apparent
14:54:19
MR. MASTERSON:
IEN
THE COURT:
Well, I --
-- and acknowledgment of destruction of
23
those things, and concern about processing of complaints?
24
We've got at least some evidence from the files involving
25
Lieutenant Sousa and others that complaints that were made were
FR
14:53:56
They took those things as trophies,
19
22
14:53:36
Can't I presume that there is a basis for a large
18
21
14:53:11
14:54:32
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4757
just never sent up the line.
And then with Chief Trombi, when
he was a captain, he didn't send complaints up the line because
he thought he should just deal with them in the division, so
nobody was aware of those, either.
Can I draw any inference about whether or not there
5
6
needs to be some real -- there exists and needs to be some real
reformation in complaint processing and internal investigation
from those kinds of things?
I mean, I'm not sure that I need that.
You may
10
acknowledge it.
11
agree, there needs to be a basis, other than just the
12
inference, to strengthen the inference.
13
sufficient basis to strengthen that inference?
But those are the areas where it seems to me I
MR. MASTERSON:
14
With the specific evidence just
discussed by the Court, I think that would be a corroborating
16
basis for the inference suggested by the Court.

THE COURT:
contest this, either.
19
talking about this general subject matter.
20
think it was Lieutenant Sousa in rebuttal testimony testified
21
that, you know, with the BlueTeam and with the IAPro, which I
22
acknowledge are things that the monitor has now implemented and
I just want to ask, as long as we're

Lieutenant -- I
DS
IEN
14:55:22
What about -- and I'm not even sure you
18
23
MCSO hasn't trained on these things yet but is trying to
24
implement them, that it's just too much for sergeants to do, I
25
think was his testimony.
FR
14:55:04
But wouldn't that be a
15
17
14:54:48
14:55:40
14:56:01
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4758
Do you contest that?
MR. MASTERSON:
THE COURT:
I do not.
Okay.
And so the -- for example, the 1 to
12 ratio that I implemented without, you know, at the very
start of this case, before we had any of these other issues and
before we needed to implement IAPro, is just not sufficient.

Do you acknowledge that?
MR. MASTERSON:
8
9
right?
THE COURT:
10
That's the one you made up, though,
Well, no, I didn't -- I didn't pull it out
11
of thin air.
12
involved in the case then, I gave quite a bit of time for the
13
parties to try to agree to things.
14
which they couldn't agree, they gave me a range of choices.
15
And so I was given a range of choice of appropriate supervision
16
range to enter when I entered the supplemental permanent
17
injunction.
What happened is, I'll tell you since you weren't
And when there was areas on
appreciate then, which was I didn't really have very much
20
knowledge on which to be making that allocation.
21
matter of fact, I gave the very broadest possible allocation of
22
the three choices given me by the parties to Maricopa County.
IEN
DS
19
24
FR
25
14:56:26
14:56:43
But I now appreciate something that I didn't
18
23
14:56:14
I think there was 1 to 8, 1 to 10, 1 to 12.
And as a
14:56:57
I gave 1 to 12.
I now believe, or at least based on the evidence I've
heard, have a basis for believing, both from what
14:57:13
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4759
Lieutenant Sousa said and I think what Captain Skinner said,
that some of the other remedies that we've implemented, and
maybe just standard operating procedure anyway, means that
sergeants are not having enough time to adequately supervise
their patrol members, and that's what I'm asking you.

MR. MASTERSON:
Now -- okay.
I think that's a valid
point, but as Sergeant Skinner -- excuse me, Captain Skinner
told you, it may depend on where exactly in MCSO you're talking
about.
And I think he discussed, for example -THE COURT:
10
Yeah, I'm talking outer limit, though.
11
Because as you'll recall, the testimony as to Lake District is
12
that they're about a 1 to 3 ratio right now.

MR. MASTERSON:
13
THE COURT:
14
Right.
I'm not -- I'm certainly not saying a 1 to
3 ratio is inappropriate; I'm just saying my 1 to 12 ratio's
16
inappropriate.
MR. MASTERSON:
19
to even comment, but it's possible, at least in my opinion,
20
that there could be areas or divisions where 1 in 12 would be
21
appropriate, but there could be other divisions where it is
22
entirely inappropriate and would result in understaffing, and
IEN
DS
that there's evidence on this, so maybe it's not proper for me
24
FR
25
14:58:05
Well, again, and then I don't know
18
23
14:57:51
And there --
15
17
14:57:33
14:58:18
Lake Patrol might be your example.

THE COURT:
Well, I do have the testimony of
Lieutenant Sousa at least, right?
14:58:34
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4760
MR. MASTERSON:
THE COURT:
And I do -- okay.
MR. MASTERSON:
You do.
I'm just going to hit one more area,
and I'm going to hit it quickly, because it's very concerning
to me, and I think it's very concerning to the Court, and
that's the 1459 IDs and the statement made by Captain Bailey.
THE COURT:
That concerns me.
MR. MASTERSON:
THE COURT:
14:58:48
It concerns me.
But --
And I'll tell you what else concerns me,
10
as long as we're talking about that, is the 50 hard drives that
11
I had to order the marshals to take custody of at the same time
12
that I had to order they take in custody the 1459 IDs.
13
matters both concern me.

MR. MASTERSON:
14
15
sorry.
I didn't hear that last part, I'm
Those matters both concern me.
MR. MASTERSON:
17
Those
14:59:23
THE COURT:
16
Okay.
Well, let's talk about the
1459.
The evidence is clear, I think, that MCSO became aware
19
of the 1459 IDs when Sergeant Knapp tried to return them.
20
I think it's a bit misleading when plaintiffs' counsel tells
21
you:
22
may not be true.
DS
18
He tried to place them in destruction.
IEN
23
24
FR
25
14:59:07
Now,
14:59:51
Well, that may or
The fact of the matter is he tried to return
them; they came from destruction.

And it's also clear that the reason they were taken
from Property, from destruction, was for training purposes.
15:00:11
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4761
That's uncontroverted.
THE COURT:
Now --
Well, it is also uncontroverted that he
never did any training.
MR. MASTERSON:
That's true.
And did he need 1459?
Probably not.
they were -- they were taken from Property correctly.
his supervisor.
His supervisor said:
THE COURT:
8
9
What's going on in his head?
I don't know.
Do it.
But
He asked
He did it --
Well, as long as we're talking about IDs
in general, do you remember when I -- you may have been in the
10
courtroom; I don't think you were representing defendants at
11
the time -- when I pointed out a whole bunch of Mexican
12
identifications to Chief Deputy Sheridan, and I said:
13
would anybody forge these Mexican identifications?
14
deal, even on the Exhibit 1420, a number -- a great deal of the
15
identifications are identified as Mexican identifications.
MR. MASTERSON:
THE COURT:
19
they were seized.
24
MR. MASTERSON:
know.
The Court's making an assumption that
Maybe they were found in a drop house.
THE COURT:
FR
I don't know, but --
15:01:23
23
25
15:01:07
And what good would they be for any
MR. MASTERSON:
IEN
22
And a great
training purpose?
DS
21
Why
believe that any of those were forged, so why were they seized?
18
20
15:00:45
Why in the world -- I don't think there's any basis to
16
17
15:00:23
Well -Maybe they were abandoned; I don't

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4762
THE COURT:
That's true.
Except for, if we want to
play that game, you still have to disclose those to the
monitor, because they are in the custody of the MCSO, and there
are a great deal -- number of them, and your client was quite
aware that it was an issue about which this Court was very
concerned.
MR. MASTERSON:
THE COURT:
8
9
Oh, I don't disagree with that.
And your client was also quite aware that
I required my monitor to be given complete access with complete
10
cooperation from the MCSO.
11
I expressed wishes about; they were in my orders.

MR. MASTERSON:
12
And those weren't just things that
But I do have to comment on what happened with respect to the
14
1459.
15
specifically instructed by counsel to answer how he did.
Sergeant -- or excuse me.
THE COURT:
16
Captain Bailey was
Well, there seems to be a dispute of fact
MR. MASTERSON:
Well, there may be a disputed fact on
the specific question that was asked, but I don't think there's
20
a disputed fact on whether Captain Bailey looked toward counsel
21
and was told no.
DS
19
IEN
THE COURT:
Oh, okay.
23
MR. MASTERSON:
24
THE COURT:
FR
25
15:02:25
about that.
18
22
15:01:58
I don't disagree with that, Judge.
13
17
15:01:45
testimony.
15:02:43
You're talking about that.
Yes.
Well, that was certainly Captain Bailey's

15:02:54
MR. MASTERSON:
1
2
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4763
And there's been nothing, no testimony
to controvert that.
I guess my point is we could debate -- maybe you
3
4
wouldn't debate -- but I could honestly debate whether that was
good advice.
these IDs subject to the Court's order?
cautious --
THE COURT:
8
9
Well, were
Certainly, the
When you say "the Court's order," you
MR. MASTERSON:
THE COURT:
11
THE COURT:
13
they seized?
Your February 12 order.
Again, I'm parsing words, but were
Were they seized from somebody?
THE COURT:
16
15:03:27
Yeah, okay.
MR. MASTERSON:
14
Yes.
-- opposed to my December order?
MR. MASTERSON:
12
that.
18
investigation because he did not want to go into investigating
19
whether or not they were seized.
20
you were just going to -- or that, I think, gives rise to the
21
inference that you were just going to conceal them, and you
22
were never going to determine whether or not these documents,
Chief Deputy Sheridan said he suspended the
And so that makes me think
DS
IEN
15:03:33
You know, here's part of my problem with
17
23
which are definitely responsive to my discovery order if we
24
want to parse words like you're doing now, but I think that's
25
your job and I'm not saying you're engaging in bad faith, we're
FR
15:03:11
talking about my February order as --
10
15
I think the testimony we heard was:
15:03:50
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4764
never going to determine that, unless their existence was
disclosed to the monitor.
And while we're there, I believe that the only
3
4
testimony was nobody ever bothered, with respect to the 500
Armendariz IDs, to determine whether or not they were seized,
and that troubles me.
the idea that -- I don't think it's contested -- that
Armendariz' violations of policy were all combined as to be
considered one violation of policy.
Especially when you combine that with
That concerns me, Mr. Masterson, and so I guess I
10
11
invite you to address all of that in conjunction with the 1459
12
IDs.
MR. MASTERSON:
13
Well, I understand the concern.
don't know what to tell you with respect to the 500, because I
15
don't know what you do.

THE COURT:
I don't know what you would do to --
suggested could be done is we'd run -- you could run the IDs
18
and determine if they showed up in the MCSO database.
19
they did show up, you could see in connection with what they
20
showed up.
21
as you suggest, found somewhere?
22
whether or not we have -- how many we have that involve members
FR
25
Was it an arrest?
DS
IEN
24
15:04:58
Well, I think one of the things that was
17
23
15:04:42
14
16
15:04:19
Was it a traffic stop?
And if
Was it,
15:05:16
And then we would know
of the plaintiff class.

But certainly I don't think it's disputed that the
1459, there are a considerable number that are -- at least have
15:05:37
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4765
Hispanic surnames, and I realize that's not a perfect
indicator; and I'm concerned that the items found in
Armendariz's home were found after he'd been an HSU officer,
and after there was testimony that Rafaelita Montoya dumped
things -- or arranged for him to take things from HSU offices
to his home.
that a very likely source for those identifications was HSU
operations, which include -- included street patrols.
interdiction patrols.
And that certainly suggests to me the inference
Street
So when Chief Deputy Sheridan testifies that he
10
11
suspended the investigation because he did not want to do this
12
very inquiry, it suggested that he suspended the investigation
13
so he would never have to turn those documents over, and that
14
concerns me.
MR. MASTERSON:
15
16
I don't think that's true.
I think
THE COURT:
15:06:31
Oh, I've just reread the testimony.
MR. MASTERSON:
18
Okay.
What he wanted to find out was
from counsel:
What's the story here with these IDs?
20
IDs -- would we have to turn these over in connection with the
21
Court's orders?
DS
19
Are these
15:06:45
What do we do here?
IEN
And the reason for his concern, I think he expressed,
23
is they're just coming off Armendariz.
24
61,000 man-hours.
25
given time --
FR
15:06:16
the testimony was he suspended --
17
22
15:05:58
They're coming off
They're coming off 50 detectives at any

15:07:05
THE COURT:
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4766
Yeah, but interestingly enough, they never
investigated the identifications in Armendariz.

MR. MASTERSON:
Well, the point is, Judge, that's his
concern is:
Are we going to get the monitors all fired up over
nothing?
determine whether we go down that path.
Let me get some advice from counsel to
THE COURT:
Wasn't that interesting that he said he
himself was upset?
this might be significant and meaningful?
He himself was disturbed?
MR. MASTERSON:
10
THE COURT:
11
15:07:17
And he thought
Absolutely.
15:07:27
Doesn't that suggest that it's the sort
12
of -- the very sort of thing that has to be disclosed to the
13
monitor?
MR. MASTERSON:
14
Well, but it's also the very sort of
15
thing that should be discussed with counsel, and at that point
16
I think you're entitled to rely on counsel's advice.
17
I sure want my clients to rely on my advice.

Do I make mistakes?
18
THE COURT:
19
In fact,
Absolutely.
Well, let me ask you this, then:
If I
determine that if in fact I agree to the advice-of-counsel
21
defense, didn't counsel just advise Captain Bailey to lie to
22
the monitor?
IEN
DS
20
15:07:50
And doesn't the crime-fraud exception apply there
23
and cause me concern that it doesn't excuse Captain Bailey's
24
conduct, it does not excuse Chief Deputy Sheridan's conduct, it
25
does not excuse Ms. Iafrate's conduct, if it's true, does it?
FR
15:07:35
15:08:10
MR. MASTERSON:
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4767
words.
It depends upon what the question was.

THE COURT:
Well, here we're back to parsing
I don't think so, because -- even as
plaintiff suggests, even if my February order was not
applicable, my December order -- or my November 20th order, as
altered in December, is applicable, that requires the monitor
to be given complete access to all of those things.

MR. MASTERSON:
8
9
I still think it's reasonable for MCSO
to rely on advice of counsel in this particular situation.

THE COURT:
10
Okay.
I don't dispute, for what it's
15:08:54
11
worth, and I have had a lively discussion with you,
12
Mr. Masterson, I don't mean to suggest that I think that your
13
arguments are made in bad faith; I'm just testing you on them.
14
But I will tell you I'm very concerned, even if I buy
15
your February argument, about the December order.

MR. MASTERSON:
16
No, and I agree.
told you I share the Court's concern.
18
why a layperson, why a cop relies on what their lawyer tells
19
them to do.
THE COURT:
23
Even when the lawyer tells him to lie?
MR. MASTERSON:
Again, I disagree that he was told to
THE COURT:
I don't see any other way to see that.
24
mean, do you remember when he told me:
25
IA number doesn't exist, even if it's been suspended, when an
FR
15:09:27
lie.
IEN
22
But I also understand
I mean, that's what we get paid for.
DS
21
15:09:10
And I -- I think I
17
20
15:08:29
You can't say that an

15:09:40
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4768
IA number exists?
to be any dispute about that.

MR. MASTERSON:
3
4
And an IA number existed; there doesn't seem
Yeah, we had a little back and forth
about that, I remember.

THE COURT:
We did.
And so it may be that they didn't
ever even ask it in terms of an IA number.
they did, the IA number existed at that time, and
Captain Bailey gave an untruthful response to the question.
But even assuming
Now, it may be -- and I understand and hear what
9
10
you're saying -- that he has the defense that he was instructed
11
by his attorney to give that untruthful answer.
12
to me that that creates, if I believe it, it creates other
13
issues as well.
MR. MASTERSON:
14
my fellow counsel can have their opportunity.
16
much to say in conclusion.
17
enforcement --
THE COURT:
18
But it seems
I don't have
15:10:28
The Court's well aware that law
Let me ask one other question before you
wrap it up.
What possible basis, even accepting all of your
20
arguments with respect to the 1459 IDs, what possible basis did
21
Chief Deputy Sheridan have for going in front of the TV cameras
22
that night and saying:
DS
19
IEN
15:10:13
Judge, I'm going to wrap it up here so
15
15:10:50
None of this material was ever asked
23
from us?
24
hard drives, even if I accept all of your arguments about the
25
1459 IDs.
FR
15:09:51
That was clearly not true with respect to the 50
15:11:10
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MR. MASTERSON:
All I can attribute that to is faulty
recollection at the time.
court all day on that day?

THE COURT:
I don't even remember:
Were we in
Oh, it -- no, but we were in court at the
end of the day because of the monitor's summary.
for about 45 minutes, and the monitor said:
concerns.
entered my order and you went over.
think it was about 3 o'clock, for about 45 minutes to an hour.
I got these
So it was about a -- I
Sometimes after court I say some
11
things that aren't very well considered, either, so that's
12
about all I have to tell you about that particular comment.
14
difficult profession and a dangerous profession.
15
suggesting to you that any of these guys are out on the streets
16
every day in bulletproof vests.
17
Sousa sometimes is.
18
THE COURT:
Now, I'm not
Well, and let me just say that I have a
20
came in and testified from the Maricopa County Sheriff's
21
Office.
DS
great amount of admiration for a number of the witnesses who
MR. MASTERSON:
IEN
15:12:04
Well, actually, Lieutenant
19
15:12:19
But what I'm trying to point out,
23
Judge, is that these gentlemen over here do supervise and lead
24
men and women who are out there every day enforcing the law and
25
doing that dangerous job for all of us.
FR
15:11:41
The Court recognizes that law enforcement's a
13
22
15:11:24
We've got the 1459, we've got the 50 hard drives, I
MR. MASTERSON:
10
It was just
And as a part of that
15:12:39
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4770
leadership, they have to lead by example.
And they have to
accept responsibility when they need to accept responsibility.

And here they have done that, Judge.
Both Chief
Sheridan and Sheriff Arpaio have told you that they accept the
responsibility for certain and specific violations of this
Court's orders, including the preliminary injunction.
think to lead by example they do accept that responsibility
with you and are not trying to get out of that responsibility.
And I
But more importantly, and why I even brought it up,
9
10
because I know it sounds a little hokey to start talking about
11
people in bulletproof vests out on the -- out on the streets.
12
But more importantly, to lead by example they have to follow
13
the law.
THE COURT:
14
And a part of following the law is
16
following court orders.
17
problems with that here.
18
with MCSO realizes that they owe it to those out on the streets
19
enforcing the law to follow the law themselves.
20
why, Judge, I can tell you that nobody in this room affiliated
21
with MCSO intentionally violated this Court's orders.
22
done.
THE COURT:
24
You know what?
15:13:47
As we all know, there were some
But everybody in this room affiliated
DS
IEN
23
FR
15:13:33
They do.
MR. MASTERSON:
15
25
15:13:07
And that's
15:14:14
And I'm
Thank you, Mr. Masterson.

I think we need to probably take a
break for the afternoon to give everybody a break, and we'll be
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Argument - Murdy, 11/20/15 Evidentiary Hearing
4771
back at 3:30.
(Recess taken.)
THE COURT:
Please be seated.
Mr. Murdy.
4
5
6
7
MR. MURDY:
Good afternoon, Your Honor.
THE COURT:
Good afternoon.
MR. MURDY:
This morning when Mr. Young started,
15:37:05
during the course of the questioning you asked him:
What
should be done about Mr. Casey's credibility or his testimony?
10
And Mr. Young specifically indicated to you that the Court
11
should accept and believe Mr. Casey's testimony.
12
regard, I'd like to highlight some aspects of his testimony.
And in that
On direct examination, at page 1619, Mr. Casey
13
14
testified that Chief Sands was very cooperative at all times.

At 1633 he testified:
15
"... I think I shared this with
16
you during my deposition.
17
him" -- meaning Sousa -- "on it" -- meaning the 12-23-11
18
e-mail -- "as lieutenant of HSU.
19
during a telephone conference that I copy him so he gets it,
20
because HSU at the time was the proverbial tip of the spear.
21
They were the ones that were most likely to be in a position to
22
either comply or violate this, so we wanted to make sure that
24
FR
25
15:37:42
I normally would not have copied
I believe Brian suggested
DS
IEN
23
15:37:18
15:38:06
he got it right away."

That establishes that on the day your order came out,
Mr. Casey spoke with Chief Sands, Chief Sands directed him to
15:38:25
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4772
send it to Lieutenant Sousa, so the person involved at HSU that
had responsibility would have your order immediately.

Mr. Casey testified at page 1640:
"... he" -- again
meaning Sands -- "recognized the urgency on it, and it was
important that his people under Enforcement Support comply."

At 1642 Mr. Casey testified Chief Sands expressed
6
7
relief about the order because he did not want to turn people
over to the federal government.
On cross-examination, at page 1813 Mr. Casey was asked
9
10
the question:
11
Chief Sands, ever express any reluctance to comply with the
12
Court's preliminary injunction order?
"At any point in time did Mr. Sands,
"Answer:
13
Do you know, Mr. Murdy, that, I think -- I
15
think you're fairly characterizing what Mr. Casey's testimony
16
was: that Chief Sands was very cooperative with him and seemed
17
to agree with him on everything he told him.

But here's what I want to know:
18
20
Chief Sands had an understanding of this order that he got from
21
Mr. Casey, how is it that nobody ever gave Lieutenant Sousa a
22
correct understanding of the order?
IEN
DS
that Lieutenant Sousa had a misunderstanding of this order and
And maybe -- I don't know.
15:39:31
If the evidence is
19
15:39:48
That's just my question,
24
and maybe you don't agree with the premises, and that's fine,
25
just tell me.
FR
15:39:14
None."
THE COURT:
14
23
15:38:48
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4773
MR. MURDY:
I'll address it, Your Honor.
As the evidence shows, the exhibits, the e-mail
2
3
transmittals in December, January, February, and March,
starting with December 2011, Lieutenant Sousa directed
Sergeant Palmer to prepare scenarios, training scenarios, and
if I recall correctly --
7
8
9
10
THE COURT:
Actually, Sousa directed that, right?
MR. MURDY:
Yes, Lieutenant Sousa directed Palmer to
prepare the training scenarios, and he said:
Prepare some the
right way; prepare some the wrong way.
15:40:41
Sergeant Palmer prepared four scenarios, we know that;
11
12
and his direction was to prepare some the right way and the
13
wrong way.
14
scenario number 3 was wrong and there was an issue about that
15
that he eventually discussed with Sergeant Palmer.
And we know that Mr. Casey's testimony is that
15:40:57
So essentially what's taking place is
16
Lieutenant Sousa, Sergeant Palmer, and Casey are the ones that
18
are developing the training scenarios, trying to figure out
19
exactly what this order provides for, what they can and cannot
20
do.
15:41:18
THE COURT:
It would have been captain -- well, it
would have been Chief Sands' view that they couldn't hold -- I
IEN
22
DS
17
21
23
think this was his testimony, too.
24
not sure you were here then.
25
the testimony.
FR
15:40:25
Maybe I'm wrong.
And I'm
I promise you I'll try to review
But I think Chief Sands said it was his view,
15:41:37
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4774
even before the preliminary injunction entered, that the MCSO
could not detain people and turn them over to ICE.
have anything -- and, I mean, I think that seems to be
consistent with the memorandum filed by Mr. Casey even prior to
the preliminary injunction motion that he filed after multiple
conferences with Chief Sands.
MR. MURDY:
It doesn't
I looked at the memorandum yesterday, Your
Honor, and I don't know that it necessarily goes as far as you
indicated.
THE COURT:
10
11
Well, did you look at the oral argument
MR. MURDY:
I did not look at the oral argument
transcript, Your Honor.
14
15
THE COURT:
Okay.
MR. MURDY:
The memorandum indicates:
MCSO's
management is further instruct its deputies, particularly the
17
Human Smuggling Unit, on the law established by Arizona, and I
18
thought there was also a reference -- MCSO lacks and does not
19
have the authority to enforce civil violations of federal
20
immigration law.
THE COURT:
23
24
FR
25
15:42:23
15:42:43
Right.
And if you determine that you
can't hold somebody on state charges, then you have to release
IEN
22
DS
16
21
15:42:16
transcript, too?
12
13
15:41:58
them, don't you?

MR. MURDY:
That's correct.
But the fact of the
matter is when the training scenarios are being developed in
15:42:53
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4775
January, February, and March, Chief Sands is out of the loop at
that point in time.
that he doesn't know what's going on, but he's not on the
e-mails that are going back and forth.

THE COURT:
I don't want to say out of the loop in
Well, I guess I get that, but if it was
and if in fact training had already been provided to HSU about
the Arizona case, then isn't this just sort of supplemental
training to the same effect?
said that state authorities didn't have the ability to enforce
10
Because the Arizona case clearly
federal civil immigration law, did it not?

MR. MURDY:
11
15:43:28
That's my understanding, Your Honor.
And
12
it's, you know, further my understanding that
13
January-February-March time frame, Mr. Casey, Sergeant Palmer,
14
and Lieutenant Sousa are working on training scenarios.

THE COURT:
15
16
I know, but I'm asking about the training
MR. MURDY:
I don't know what training had taken
place.
I don't believe it's in the record with regard to this
19
evidentiary hearing on the contempt proceedings.
20
going on what Mr. Casey said in the supplemental briefing
21
memorandum filed in December of 2011.
DS
18
IEN
THE COURT:
Right.
I'm just
but he does indicate that such training had occurred, does he
24
not?
FR
MR. MURDY:
15:43:58
And that's what I'm going on, too,
23
25
15:43:43
about Arizona that had already taken place, apparently.
17
22
15:43:09
It does indicate that the training has
15:44:11
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4776
occurred.
2
3
THE COURT:
Okay.
MR. MURDY:
So clearly there's some misunderstanding
or misinterpretation of the Court's order in that
January-February-March time frame, and Chief Sands is not on
the e-mails after the first e-mail where Casey sends out the
order.
Now, you have -- also have testimony Maricopa County
8
9
Sheriff's Office is a law enforcement organization with a
10
command structure, and Chief Sands properly delegated, you
11
know, the in -- the requirement or the task of developing the
12
training scenarios to Lieutenant Sousa and Sergeant Palmer.
13
The testimony is that sergeant -- or, excuse me, lieutenant -THE COURT:
14
testimony that Sheriff Arpaio and Chief Sands were always on
16
them at HSU to increase the number of arrests of illegal
17
aliens?
18
training scenarios, and on the other he's saying, Let's
19
increase our operations and arrest illegal aliens.

What gives there?
MR. MURDY:
15:45:19
Well, I think you can have a proper arrest
if it's a violation of state criminal law.
IEN
22
That doesn't give
23
them the green light to violate the Court order.
24
you know, and everybody has testified -- Lieutenant Sousa,
25
Sergeant Palmer -- that Chief Sands never directed them to
FR
15:44:55
I mean, Chief Sands is on the one hand saying, Prepare
DS
21
15:44:40
What do I do about Lieutenant Sousa's
15
20
15:44:21
I don't --
15:45:39
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4777
violate the order; never directed them not to comply with the
order; that testimony is consistent.
You know, skipping forward to the trial in the summer
3
4
of 2012, you know, on July 24th there's testimony by the
sheriff with regard to the LEAR policy is still in effect.
That brings up an issue to Mr. Casey's attention with regard
to:
and Chief Sands communicate with the deputies that were
involved in that, explain to them:
10
What's going on?
Is there a violation of the order?
You can't do that.
15:46:00
He
And
then Mr. Segura's letter in October of 2012 raises the issue -THE COURT:
11
Let me ask:
Does Chief Sands ever testify
12
that he remembers talking about the deputies and talking to the
13
deputies involved in that?

MR. MURDY:
14
I don't recall that, Your Honor.
15
believe it was Mr. Casey that indicated that he and Chief Sands
16
spoke to the deputies.
17
18
20
21
23
FR
MR. MURDY:
I do not believe they were named by name,
THE COURT:
And what about Sheriff Arpaio?
Did they
15:46:51
speak to Sheriff Arpaio?

MR. MURDY:
Well, they did in October for sure, after
they received Mr. Segura's letter.
24
25
And did he indicate which deputies?
15:46:38
but it was the deputies that apparently had testified at trial.
IEN
22
THE COURT:
DS
19
15:46:21
they did?
THE COURT:
Does Chief Sands offer any testimony that

15:47:06
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4778
MR. MURDY:
It's my understanding that Chief Sands did
not have a recollection of that meeting, which, you know, is
not -- I think it's common human experience, you know, involved
with spouses, significant others, and family members, depending
upon what side of the equation you're on, that you can have
conversations that you flat-out don't recall.

THE COURT:
7
8
That's a pretty significant conversation,
though, isn't it?
MR. MURDY:
It would -- it's a significant
10
conversation, but I think, you know, common human experience is
11
you can have conversations that have significance that you
12
don't recall, and then when somebody parrots it back to you,
13
you're, like, Okay, that did in fact take place.
14
15
16
18
Did he say that?
MR. MURDY:
And we've had an item of evidence in this
to --
THE COURT:
213?
MR. MURDY:
213.
THE COURT:
This is the one that says:
DS
20
THE COURT:
Chief Sands
22
we've never done anything wrong?
IEN
tells me to send this out again and I'm doing it even though
23
MR. MURDY:
That's correct, Your Honor, that is --
24
THE COURT:
Wouldn't that be a little advertisement to
FR
15:47:44
It's an e-mail from Lieutenant Sousa
21
25
15:47:29
matter, I think it's Exhibit 213 --
17
19
15:47:19
Chief Sands that:
My gosh, Sousa thinks we haven't done
15:47:56
15:48:08
anything wrong.
Well, actually, Chief Sands was not copied
on that e-mail.
THE COURT:
4
5
We've been doing things wrong for months here.
MR. MURDY:
2
3
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4779
that.
Thank you for correcting me on
15:48:22
MR. MURDY:
Okay.
I think this e-mail is consistent with the
time frame with the Segura letter; Mr. Casey's letter back to
Mr. Segura; Mr. Casey's testimony that they met with the
sheriff.
Mr. Casey indicated that it was a heated discussion,
10
and that at a portion of the meeting Chief Sands stepped out of
11
the meeting.
Mr. Casey also indicated -- and I'll give you the
12
13
transcript cite.
14
Sands indicated to Casey that if the meeting, quote, doesn't go
15
right, close quote, he would resign.
16
also resign.
17
18
20
21
Casey indicated that he'd
THE COURT:
He didn't resign, did he?
MR. MURDY:
Well, he resigned about eight months
THE COURT:
That was after in fact the final
MR. MURDY:
That's correct, Your Honor.
know, in the pleading I filed this morning I cited a case.
24
think it's Institute of Cetacean Research --
FR
15:49:21
And, you
23
25
15:49:07
injunction had been entered, right?
IEN
22
later.
Mr. Casey, on direct examination at 1694:
DS
19
15:48:37
THE COURT:
Any reason why I should let you file that
15:49:38
pleading?
2
3
4
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4780
MR. MURDY:
Pardon me?
THE COURT:
Any reason why I should let you file that
pleading and not strike it.

MR. MURDY:
Yes, there is.
I will be happy to address
it.
I'd like to address it formally in writing.
know, we've had 1599-plus documents filed in this case.
filed this pleading this morning as sort of the bench
memorandum for the Court to support the oral argument.
10
contains nothing but cites to law.
11
cites to --
12
13
14
15
16
I think, you
I
It
It contains nothing but
THE COURT:
All right.
MR. MURDY:
-- the transcript.
THE COURT:
I'll allow you to file it.
Mr. Young,
I'll allow you to file a response within
18
19
MR. YOUNG:
THE COURT:
All right.
MR. MURDY:
In the Institute of Cetacean Research, the
Ninth Circuit specifically indicated -- I'll give you the
21
cite -- 774 F.3d at 958.
DS
20
IEN
THE COURT:
24
response to the motion as well.

MR. MURDY:
15:50:23
I was just indicating, of course,
Mr. Masterson, Mr. Popolizio, or Mr. Walker, you can file a
FR
15:50:15
The court concludes --
23
25
15:50:04
two weeks, all right?
17
22
15:49:45
At 774 F.3d at 958, the Court concluded
15:50:43
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4781
that under the circumstances, quote, "it would not be equitable
to hold" -- and they identified the person by name, but it was
Sea Shepherd's Administrative Director -- "in contempt," close
quote, as she, quote, "could only comply with the injunction by
resigning from her paid employment."
6
7
15:51:04
THE COURT:
Well, that's not the case here, right?
MR. MURDY:
It certainly could be.
If you're trying
to hold Chief Sands in contempt for failure to provide the
order to line troops, or failure to go against the sheriff's
10
policy, he's left in no position other than to resign his
11
employment.
THE COURT:
12
What testimony do I have -- I mean, I
13
might find it.
14
was the sheriff's policy to ignore the preliminary injunction?
What testimony do I have that suggests that it
MR. MURDY:
15
You know, I don't want to get into the
Clinton situation again, but I think we have testimony and
17
evidence that the policy of Maricopa County Sheriff's Office
18
was to detain people that were in the United States unlawfully
19
and transport them to ICE.
20
equates to a violation of this Court's order, but certainly
21
that's the --
DS
16
THE COURT:
IEN
22
15:51:41
I don't know that that necessarily
15:52:04
Well, it certainly does violate this
23
Court's order, doesn't it?
24
transporting to ICE that you don't have any basis to bring
25
state charges on, that violates the other order, doesn't it?
FR
15:51:24
If you have people that you're
15:52:26
1
2
Honor.
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MR. MURDY:
That violates the Court's order, Your
THE COURT:
So are you telling me that the reason that
I shouldn't hold Chief Sands in contempt is because that was
the policy of Maricopa County Sheriff's Office and he knew it?

MR. MURDY:
There's certainly evidence to indicate
that there was a misunderstanding as to the scope of your
order, and that that was being conducted.

THE COURT:
9
10
does it?
11
12
And once he had --
Yeah, but that doesn't amount to a policy,
A misunderstanding doesn't equate to a policy.
MR. MURDY:
Well, if it's a misun- --
THE COURT:
If all you're saying is that there's a
13
misunderstanding, then there's no -- that doesn't amount to a
14
policy.
MR. MURDY:
15
Fair enough, Your Honor.
But if there was
a misunderstanding, I think that misunderstanding has its
17
genesis back in the winter of 2012 when Mr. Casey's working
18
with Lieutenant Sousa and Sergeant Palmer to develop the
19
training scenarios.
20
THE COURT:
DS
16
Well, it doesn't -- is there any evidence
22
the policy?
IEN
from which I can conclude that Chief Sands didn't understand
24
FR
25
15:52:55
15:53:07
Whatever --
21
23
15:52:37
15:53:20
Or didn't -- I'm sorry, didn't understand the
injunction.
I mean, it was his own testimony that he went to
Sheriff Arpaio and said:
We can't be doing this, consistent
15:53:33
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4783
with the injunction.
it.
MR. MURDY:
He knew.
He knew you couldn't be doing
Well, when it came out during the course
of the trial that they were still conducting the Lear policy,
it became evident, as I understand the testimony, to Mr. Casey
and Chief --
7
8
9
THE COURT:
Well, yeah, yeah --
MR. MURDY:
-- Sands that it's a violation.
THE COURT:
-- yeah, but -- but Chief Sands went to
10
Sheriff Arpaio right after the injunction entered, and he said:
11
You can't be doing this, and we need to tell everybody.
12
his testimony, and I think Sheriff Arpaio agreed, was that
13
Sheriff Arpaio said:
14
we're just going to tell HSU.
15
MR. MURDY:
No, we're not going to tell everybody;
Well, again, as I understand the
testimony, and I've got it in this memorandum I filed, is that
17
Mr. Casey testified that Chief Sands was very supportive of the
18
training, was very supportive of getting it out to the line
19
troops --
DS
THE COURT:
Then why didn't he say:
Oh, by the way,
you can't detain people if you don't have state charges and you
22
can't transfer them to ICE?
IEN
21
23
24
FR
25
MR. MURDY:
15:53:53
And
16
20
15:53:45
15:54:11
15:54:24
Would have been very simple.
I think that's the -- the training
scenarios were developed in that regard.

THE COURT:
Training scenarios were never issued.
15:54:40
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4784
This went for months.
there's evidence that nobody told Sousa that his understanding
of the policy was wrong, even though at some point you gotta
realize that it's wrong if you've been told what Casey says he
told Sands, and what Sands said he told Sheriff Arpaio, right?
6
7
8
9
10
MR. MURDY:
Correct.
THE COURT:
So what do I do with all that?
MR. MURDY:
I think you, you know, substantial
comply --
15:55:16
THE COURT:
Where do I find a good faith basis from
what Chief Sands did?
I'll tell you what's more interesting to me.
13
14
Chief Sands retired.
15
and also to remunerate those who have suffered because of the
16
violation.
17
Chief Sands now; he's retired.
Civil contempt is to compel compliance,
I don't really think I can compel compliance with
civil contempt to the extent that there may be some sort of
20
need to provide recompense to those who suffered because of the
21
order, so I'm not sure that civil contempt is out of the
22
question, but do you want to enter -- do you want to address
IEN
DS
19
24
FR
25
15:55:30
I do think there still may be a basis to find him in
18
23
15:54:59
compliance, or a good faith basis, or a good faith attempt to
11
12
Nobody ever apparently told even --
15:55:49
that issue?
MR. MURDY:
Absolutely, Your Honor.
I agree with you
that given the fact that Chief Sands is retired from the
15:56:04
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4785
Maricopa County Sheriff's Office, there's no civil course of
sanction that can be implied and we're looking potentially only
at a compensatory --
4
5
6
7
Right.
MR. MURDY:
-- damage award.
THE COURT:
But that still would justify a civil
MR. MURDY:
A civil contempt order in what regard?
THE COURT:
Because of the need to compensate the
victims here.
MR. MURDY:
11
15:56:30
It's my understanding that's -- in the
12
context of this hearing, that's your limitation is to provide a
13
civil contempt order awarding remedial damages to those persons
14
harmed by that order.
15
16
17
THE COURT:
I share that understanding.
MR. MURDY:
Okay.
THE COURT:
So I still could enter a civil contempt
order against Chief Sands if I find that he meets the standard
19
for civil contempt, even though there's really no coercive --
20
nothing I can do to coerce -- there's no reason to coerce his
21
compliance, given his retirement.
DS
18
MR. MURDY:
IEN
22
23
15:56:43
15:56:54
That's my understanding, based upon the
United States Supreme Court decision in Bagwell, Your Honor.
24
THE COURT:
All right.
25
MR. MURDY:
You know, getting to that issue, which
FR
15:56:18
contempt order, right?
10
THE COURT:
Thank you.
15:57:05
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4786
ties back into our motion for summary judgment, in the summer
of 2012, on July 24th when the sheriff testified, the
plaintiffs became aware that this LEAR policy was still in
effect.
Mr. Casey complaining of the violations.
recitation of the evidence today concerning the sheriff's
statements in the summer of 2012 with regard to he's going to
enforce the federal immigration law.
In October of 2012, Mr. Segura writes the letter to

And we heard the
So at that point in time, the plaintiffs knew or
9
10
should have known that that order was being violated.
11
they didn't file their request for order to show cause until
12
two years I think five months and 15 days, approximately, after
13
they learned of that.
And then
15
unreasonable delay -- and I'd to address the issue with regard
16
to statute of limitations on criminal contempt.
17
Mr. Young cited 18 U.S. 3282 in support of a five-year statute
18
of limitations.
19
briefly look at it on my phone.
20
provides for a one-year statute of limitations on --
23
I think
DS
18 U.S.C. 3285 I believe
15:58:27
What do I do about the fact that, as
Mr. Masterson pointed out, Mr. Casey denied that there had been
any violation?
24
MR. MURDY:
25
sanctions argument that if --
FR
15:58:03
Over the lunch hour I had an opportunity to
THE COURT:
IEN
22
15:57:44
So you've got a situation where there's an
14
21
15:57:25
I think that goes to the mitigation of

15:58:44
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4787
THE COURT:
1
2
It doesn't go to the mitigation of
sanctions argument; it goes to an accrual argument, doesn't it?

MR. MURDY:
Well, it certainly could, Your Honor.
But
the fact of the matter is Mr. Segura put in writing he thought
that there were violations.
plaintiffs and the plaintiffs class knew or should have known
of the potential violations, and they should have taken action.
They'd been involved in this litigation for years.

THE COURT:
And at that point in time, the
Let me ask you this as it pertain -- this
10
is one of the areas of my interest.
11
laches motion, you can't just talk about generalized loss of
12
evidence; you have to point to specific evidence that you have
13
lost as a result of the delay in order to get summary judgment
14
on laches.
16
Seems to me that to win a
I don't think you can point to any specific evidence,
15
MR. MURDY:
19
perhaps "replete" may be too strong of a word, but there's
20
certainly evidence of false -- not false, but faded memories,
21
lack of memory with regard to certain --
DS
believe the trial -- or the evidence during testimony is --
IEN
THE COURT:
does not get you summary judgment on a laches motion; you have
24
to point to specific evidence.

MR. MURDY:
15:59:46
That's precisely the kind of stuff that
23
FR
15:59:28
I cannot at this point in time, but I
18
25
15:59:11
can you, that would have benefited Chief Sands in the case?
17
22
15:58:57
Okay.
Well, the specific prejudice in
15:59:58
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4788
this regard is the fact that when the plaintiffs stood or sat
on their claim for over two years, if they would have brought
the issue to the forefront in the fall of 2012, something could
have been done, and additional plaintiffs or plaintiff class
members, potential class members, would not have been damaged.

So I believe that the cutoff date would be July 24th
6
7
of 2012, when they learned of the continuation of the
LEAR policy from Sheriff Arpaio's testimony.
pleading I indicated there's only approximately 53 people
10
And I think in my
between December 23rd, 2011, and July 24, 2012, that were --
11
12
13
THE COURT:
On street operations?
MR. MURDY:
Yes, I think it's in --
THE COURT:
Per Lieutenant Sousa's testimony that he
14
heard over the phone District 2 calling, and then we don't have
15
any work enforcement operations, correct?

MR. MURDY:
16
That's correct, there's no work
18
It's not in the record.
19
207 and 208, which address 2011 and 2012 time frame.
20
if you go into the 2013 time frame, there's additional people
21
that were detained and transported to ICE.
DS
enforcement operation evidence.
IEN
THE COURT:
23
24
FR
25
16:00:38
16:00:57
17
22
16:00:19
Plaintiffs didn't present it.
The only thing I know of is Exhibits
Instead,
16:01:13
What do I do about the argument that you
have to have clean hands in order to invoke laches?

MR. MURDY:
The clean hands is shown by the
conscientious efforts to get the training out; directing that
16:01:30
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4789
Tim Casey send the e-mail to Lieutenant Sousa; directing that
these training scenarios be developed; addressing the issue in
the fall of October 2012.
violated this order of his -- any of his own accord, so I think
he has clean hands.
There's no evidence that Chief Sands
16:01:53
You look at Tim Casey's testimony as outlined in the
6
7
memorandum, he's clear that Chief Sands is cooperative; wants
the training developed; he's relieved by your order; he doesn't
want to detain people; he doesn't want this to continue.
10
whatever reason, it continued.
11
Casey's testimony -THE COURT:
12
13
For
But I think if you take Tim
And Chief Sands was in charge of the HSU
until it became a division, right, and was --
14
15
MR. MURDY:
Well --
THE COURT:
-- folded into SID, and then was folded
16
into SID.
17
the -- when he was in charge of these things that my
18
preliminary injunction order was being violated.
I don't believe there's any evidence of
that, and I get back to the fact that MCSO's a law enforcement
21
organization with a command structure.
22
understand it, Chief Sands was in the chain of command with
IEN
DS
20
regard to HSU, but that doesn't necessarily equate to you know
24
everything that's going on in HSU.

THE COURT:
16:02:42
Certainly, as I
23
FR
16:02:22
And he was not aware during the whole 17 months that
MR. MURDY:
19
25
16:02:13
Well, the testimony also was that
16:02:58
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4790
Mr. Casey fully explained to him the arrest or release
instruction, correct?
MR. MURDY:
3
4
phraseology was used by Mr. Casey.

THE COURT:
5
6
And so he understood the preliminary
MR. MURDY:
I don't know that there's evidence in the
record that that was conveyed to Chief Sands in -THE COURT:
Well, there certainly is, because
10
Chief Sands went to Sheriff Arpaio and said:
11
them go.
12
13
MR. MURDY:
Well, that's in October of 2012.
THE COURT:
It isn't.
Mr. Murdy.
15
entered.
No, it isn't.
No, it isn't,
16:03:42
All right.
Well, if that's the case, Your
Honor, I will defer to your recollection, but I -THE COURT:
18
Well, you don't have to defer to my
recollection.
20
and I'll authorize you to file a brief saying:
21
But I will tell you that's most definitely my recollection that
22
it was Chief Sands' testimony that after the preliminary
IEN
DS
19
If you think I'm wrong, check out the record,
You're wrong.
23
injunction entered he went to Sheriff Arpaio and he said:
24
can't do this, and you can't do it in drop house raids.
25
Sheriff Arpaio said, Well, I think I can hold material
FR
16:03:29
That's right after the preliminary injunction order
MR. MURDY:
16
You gotta let
Remember that testimony?
14
17
16:03:18
injunction order.
7
8
It's my understanding that that
16:03:51
You
And
16:04:07
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4791
witnesses, but he said he otherwise agreed.
He testified to another meeting immediately after the
2
3
injunction where he said Sheriff Arpaio and Chief Deputy
Sheridan were there, and they discussed the nature and needs of
the injunction.
if I'm wrong, but my recollection is that's right after the
entry of the preliminary injunction.

MR. MURDY:
8
9
So, I mean, you can go back and look, tell me
I do recall the testimony concerning the
drop house, Your Honor, that there was testimony that that
10
could not be done.
11
you get back to a command structure situation, you've got
12
Chief Sands, Deputy Chief Sheridan, and the sheriff discussing
13
this issue, they're in consultation with their attorney, and
14
the direction from Chief Sands to ser -- or Lieutenant Sousa
15
and Sergeant Palmer is to prepare training scenarios, clear
16
them with the attorney, and get it out.
But the fact of the matter is, you know,
16:04:35
16:04:57
And Tim Casey's testimony is unequivocal that
17
Chief Sands was supportive of the training, was supportive of
19
the order, was relieved by the order, and did not want to turn
20
people over to the federal government.
21
have is a good faith attempt to comply with the order, and
22
that's supported by the evidence through and through.
IEN
DS
18
So I think what you
16:05:16
And I
23
think it's culminating in that testimony with regard to the
24
October 2012 meeting between Tim Casey, Chief Sands, and the
25
sheriff, where essentially Chief Sands testifies:
FR
16:04:21
If this
16:05:35
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4792
meeting doesn't go right I'm going to resign.
And we know coming out of that meeting that there was
2
3
representations made to Casey that they weren't doing it and
they weren't going do it, and if they had done it, it was a
mistake.
16:05:52
THE COURT:
And then for the next eight months they
continued to do it.
And they did it in an organization that
Chief Sands supervised, was in the direct line of supervision.
So how, if they weren't going to do it, if Sheriff
9
10
Arpaio said they weren't going to do it and Mr. Casey told that
11
to Chief Sands, who communicated to Jakowinicz:
12
any more?
13
October meeting, communicated to Jakowinicz:
14
more.
Don't do this
We've got no testimony that anybody, even after that

Don't do this any
Can you point to any testimony?
15
16
17
MR. MURDY:
I cannot, Your Honor.
THE COURT:
Wouldn't it have been Chief Sands'
obligation to tell Jakowinicz:

MR. MURDY:
18
16:06:33
Don't do this any more?
In the chain of command, the answer is
yes.
But you also have to take into consideration that there
20
was chain of command above Chief Sands, and there's no
21
testimony, as I understand it, that that direction or that
22
order was given to Lieutenant Jakowinicz.
IEN
DS
19
23
16:06:49
But I will say that there is testimony that when
24
Jakowinicz took over in I think it's March of 2012, Chief Sands
25
told him:
FR
16:06:11
Read the order.
Study the order.
16:07:08
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4793
1
2
3
THE COURT:
Yeah.
MR. MURDY:
So Jakowinicz knew about the order and had
been told by Chief Sands:

THE COURT:
Read it and study it.
Isn't it interesting, then, that in
October Chief Sands goes back to Lieutenant Sousa and he tells
Lieutenant Sousa -- who is no longer, and has not been for
months, in charge of the HSU -- he asked Lieutenant Sousa to
summarize and promulgate the order.
Lieutenant Sousa's understanding, for better or for worse, good
10
12
And as we've seen,
or bad faith, was wrong.

MR. MURDY:
11
16:07:44
Well, I think it's consistent that
Chief Sands would go back to Lieutenant Sousa.

THE COURT:
13
Why?
He's not in the command structure.
14
If he told Jakowinicz to study the order in April, why can't he
15
rely on him to understand it?
16
MR. MURDY:
16:07:57
Well, he should be able to, but I think
going back to Lieutenant Sousa goes back to Lieutenant Sousa
18
was originally tasked with the issue back in January, and as
19
far as Chief Sands was aware, you know, that's where it had
20
remained and had -- Lieutenant Sousa was back, you know -THE COURT:
Study this order.
23
Sousa had been -- was it SWAT? -- I think SWAT for the next six
24
or seven months, right?
FR
25
MR. MURDY:
16:08:18
It had remained with Lieutenant Sousa,
even though Chief Sands said to Jakowinicz:
IEN
22
DS
17
21
16:07:19
That's correct, Your Honor.
But I -- you
16:08:39
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4794
know, I think you -- the testimony from Chief Sands and from
Lieutenant Sousa is Lieutenant Sousa's a self-starter; he's a
goal-oriented individual; that he likes to complete tasks that
are assigned to him, especially when they're given to him by a
superior; he doesn't go back to the superior unless absolutely
necessary; and if there had been a problem, he would have gone
back to the superior.
So I think Chief Sands was entirely reasonable in
8
9
10
going back to Lieutenant Sousa and asking him to get this issue
resolved and get it taken care of.
THE COURT:
11
12
14
15
Even though Lieutenant Sousa had a wrong
MR. MURDY:
That is an issue, Your Honor.
THE COURT:
Okay.
MR. MURDY:
I won't go into detail with regard to
16
Sergeant Palmer's testimony, but he did indicate that after he
17
received the order he read it, he consulted with
18
Lieutenant Sousa with regard to it, and that he held a briefing
19
in HSU with all the deputies.
20
that January-February time frame to get your order out to the
21
HSU personnel, the HSU deputies, and continue with the
22
situation where they're understanding it, reading it, and
FR
25
16:09:34
So I think you have efforts in
DS
IEN
24
16:09:08
understanding.
13
23
16:08:54
16:09:53
attempting to comply.
THE COURT:
Bottom line, tell me everything that
Chief Sands did to communicate the meaning of the order, as he
16:10:11
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4795
received it from Casey, to Sousa, to Palmer, to Trowbridge.

MR. MURDY:
I don't have any e-mail evidence that I
can point to that says Chief Sands conveyed an e-mail to those
individuals in that regard.

THE COURT:
And the only testimony that I have that I
can remember -- and I'm inviting you, please, don't let me
misstate the evidence -- the only testimony I have that I can
remember is Lieutenant Sousa's testimony that when he was sent
the order -- and maybe it was Chief Sands, too, and Casey --
10
that he was sent the order at Sands' direction by Casey; and
11
that Chief Sands just said:
12
injunction.
Read the order.
Don't violate the
That was it.
MR. MURDY:
14
I think the testimony, the reasonable
15
inference is that Lieutenant Sousa and Sergeant Palmer were to
16
work with Mr. Casey to develop the training scenarios.
17
that's clear from Sergeant Palmer's e-mail.
18
19
Okay.
That's helpful.
MR. MURDY:
Sergeant Palmer's e-mail.
know, I would emphasize this.

This is Exhibit 2540.
And
That's helpful.
And I -- you
Let me find it real quickly.
16:11:28
Sergeant Palmer's e-mail of
23
Lieutenant Sousa:
24
E-Learning segment based on Judge Snow's order.
25
this in accordance with my --"
FR
16:11:08
January 19th, 2012, so within 30 days of your order, to
IEN
22
THE COURT:
DS
21
16:10:51
Do I have any other testimony?
13
20
16:10:32
"Below is my rough construction of an

I constructed
16:12:13
THE COURT:
1
2
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Argument - Walker, 11/20/15 Evidentiary Hearing
4796
You know, let me just suggest, Mr. Murdy,
I know that exhibit.
3
4
MR. MURDY:
Right.
THE COURT:
You've spent now 36 of the 56 minutes,
leaving Mr. Walker 20.
that's okay with your allocation.
promise I'll shut up and let you finish whatever you have to
say.
MR. MURDY:
And that's all right with me as long as

But you might want to -- I
I would just like to emphasize this one
10
final point with regard to Sergeant Palmer's e-mail:
11
constructed this in accordance with the many conversations you
12
and I have had, as well as taking into account the information
13
conveyed to us both from Tim Casey concerning Judge Snow's
14
order."
16
introductory paragraph:
17
with patrol deputies as the focus."
THE COURT:
19
"Also note I created these scenarios
Mr. Walker.
MR. WALKER:
16:13:04
Before I start,
during the lunch break I communicated with plaintiffs' counsel,
IEN
22
23
and on our motion seeking judicial notice of the expenses,
24
copies of the monitor's invoices as we have them were supposed
25
to have been attached.
FR
16:12:50
Thank you, Mr. Murdy.
DS
21
16:12:35
18
20
"I
And the last paragraph, or the last sentence of that
15
16:12:21
They were inadvertently omitted.
16:13:36
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4797
Plaintiffs and plaintiff intervenor have stipulated
1
2
that we can submit these to the Court, but they have declined
to stipulate to the fact that they are evidence that the
invoices were actually paid, and have asked that we see if we
can find some documentation that confirms that the payment was
made.
THE COURT:
If you do that and you want to submit a
supplemental stipulation that all parties are agreed to, I'm
open to that.
MR. WALKER:
10
11
And I can hand up
THE COURT:
If you'll just file the invoices with the
evidence that indicates they're paid, I'd appreciate that.

MR. WALKER:
14
Thank you.
Your Honor, Maricopa County, whose limited powers are
15
exercised by the Board of Supervisors pursuant to A.R.S.
17
11-201, does not wish to excuse or condone any conduct that
18
amounted to failures to comply with this Court's orders.
19
record is devoid of any evidence that anyone on the Board of
20
Supervisors --
THE COURT:
The
16:15:06
I'd like to be clear, and I don't -- I
23
to make, but on the other hand, I do not want to be prejudicial
24
to the actual defendants that are here.
FR
25
16:14:31
don't want to prevent you from making whatever record you want
IEN
22
DS
16
21
16:14:18
a copy of the invoices or file them through ECF, whichever --
12
13
16:14:02
You are here, Maricopa County is here because it is
16:15:19
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4798
the jural entity that has to be sued.
I am aware of nothing
that suggests the Board of Supervisors or any other County
administrative officer was involved in any of the contempt --
allegedly contemptuous actions here.
So to the extent that you want to go through that
5
6
retinue, I'll let you, but it doesn't have any relevance to why
we're here, nor does it have any relevance to why you're here.
Because I do recognize that you're here because you are the
jural entity that has to be sued for MCSO's actions and Sheriff
10
Arpaio's actions, and that is why you are here.

MR. WALKER:
11
12
16:15:52
Thank you for that, Your Honor, and I
think that will shorten things a bit.
The one area that caused me concern -- and I think
13
Your Honor noted this at the time -- was Detective Vogel's
15
testimony that I thought at least left an implication that
16
perhaps employees of the Office of Enterprise Technology had
17
not been fully cooperative in the efforts to obtain information
18
from the e-mail from the disaster recovery tapes.
19
to draw the Court's attention to the fact that I filed earlier
20
this week a stipulation -THE COURT:

MR. WALKER:
IEN
22
DS
14
21
23
16:16:12
I just want
16:16:34
I've read your stipulation.

-- agreed to by all parties.
Now, the next point I'd like to address is as Your
24
Honor has observed, there is no evidence in this record of any
25
involvement in violations of the Court's orders by the
FR
16:15:36
16:16:51
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4799
employees of -- or members of the Board of Supervisors or
employees working under their direct supervision.
I'd just like to address, if there's any question in
3
4
the Court's mind, that there is also, according to United
States Supreme Court precedent, no basis on which liability for
any contemptuous conduct could be imputed to the County.

THE COURT:
I'm not sure that that squares with what
the Ninth Circuit has ordered, that Maricopa County has to be
the jural entity that is sued.
10
Circuit.
And I'm following the Ninth
16:17:47
MR. WALKER:
11
Okay.
Well, I'd just like to draw to the
12
Court's attention the Supreme Court decision in McMillian
13
versus Monroe County, Alabama.

THE COURT:
14
15
you not?
THE COURT:
17
MR. WALKER:
18
20
And you've already cited that to me, have
Yes, I have, Your Honor.
And I've already read it.

Okay.
Well, I would then also like to
bring to the Court's attention -THE COURT:
DS
19
That's 520 --
16:18:02
MR. WALKER:
16
Let me ask how that plays out here,
though.
22
do think that we have an issue that pertains to, if we can do
IEN
21
16:18:09
Is what you're telling me is -- I mean, truthfully, I
23
it, making victims of the contempt whole.
24
that the County is not liable for that, I want to hear it right
25
now.
FR
16:17:18
If you're telling me
16:18:29
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4800
MR. WALKER:
I am telling you that, Your Honor, but as
I indicated when we spoke about this last week, the County
views itself as being obligated, pursuant to Arizona statutes,
to provide funding for such purposes, and we continue in our
discussions with plaintiffs' counsel about a victims
compensation fund.
going to be able to present to the Court reasonably soon a
proposal on that, and so there's -- the distinction is between
liability versus financial responsibility pursuant to Arizona
10
statute.
And again, I'm still optimistic that we're
16:19:17
THE COURT:
11
16:18:57
Well, I want to know, really, what the
12
practical difference is.
I'm more interested in practical
13
differences than fine legal distinctions, although I'm also
14
interested in fine legal distinctions, too.
Tell me, is there any practical difference?
15
MR. WALKER:
16
16:19:28
The practical difference, I think, Your
Honor, with respect to victim compensation, is none.
18
distinction between liability and financial responsibility
19
becomes important, however, depending on whether the Court
20
determines that some additional injunctive relief is
21
appropriate.
The
Well, that is a likelihood.
23
MR. WALKER:
24
And if the County is not liable, then it could not be
FR
25
16:19:46
And --
THE COURT:
IEN
22
DS
17
And I understand that, Your Honor.
the subject of any such further injunctive relief.
16:20:06
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4801
THE COURT:
Tell me how the County is not liable if
it's the jural entity that has to be sued when Maricopa County
Sheriff's Office is sued.

MR. WALKER:
Well, first of all, Your Honor, I
think -- and we've covered this ground a little bit
previously -- you and I have a little different perspective on
what the meaning of the Ninth Circuit's decision is.
the Ninth Circuit -THE COURT:
MR. WALKER:
10
I think
I like mine.
I'm not surprised by that, Your Honor.
THE COURT:
12
It said that you're the jural entity that
has to be sued, didn't it?

MR. WALKER:
14
No, I don't think it actually says that.
15
I mean, there -- it follows in the wake of a decision that MCSO
16
is a non-jural entity, but I don't think that the court
17
actually specifically said -- and there is no dispute, by the
18
way, that the County is a jural entity -- but I don't think the
19
court actually said the County had to be sued.

THE COURT:
DS
20
So does that mean that Maricopa County
Sheriff's Office can just go around doing whatever it wants and
22
creates liability that nobody can get sued for?
IEN
21
23
MR. WALKER:
No, Your Honor.
16:20:55
16:21:13
As a matter of fact, I
24
think the sheriff and the constitutional office, not MCSO, the
25
bureaucratic entity, but the constitutional office of the
FR
16:20:35
The Ninth Circuit's decision ordered the County --
11
13
16:20:22
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4802
sheriff, is a jural entity and is subject to suit and has the
right to sue and --
THE COURT:
And the Ninth Circuit did say that's not
right, didn't they?
MR. WALKER:
THE COURT:
I'm sorry?
16:21:43
They said I could sue the sheriff in his
official capacity, which would be the same thing as suing
Maricopa County.
MR. WALKER:
THE COURT:
10
MR. WALKER:
11
Actually, the court said --
Not I could sue, but a party could sue.

Right.
Actually, I think the court said
12
it's the same thing as suing the entity.
13
I may have a different perspective is I would contend that the
14
entity is the constitutional office of the sheriff, not the
15
County in this situation.

THE COURT:
16
17
Where I think you and
MR. WALKER:
THE COURT:
19
Well, the County funds the constitutional
That is true.
And so if there's liability in the
constitutional office of the sheriff, the County has to fund
21
it.
DS
20
MR. WALKER:
IEN
23
24
FR
25
16:22:07
office of the sheriff, doesn't it?
18
22
16:21:52
16:22:15
As long as it's not willful misconduct, I
think that's true.

THE COURT:
What about the idea floated by the United
States here that maybe what has to happen is the County has to
16:22:26
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4803
be liable to set up an independent overseer board over the
Sheriff's Office, that that might be an appropriate remedy
here.
a solution?
Are you saying you're not a party to have me order such
MR. WALKER:
I would put it this way, Your Honor:
don't believe, under Arizona law, the County has the authority
to create such an entity.

THE COURT:
8
9
discussion, too.
Yeah, but, I mean, we've had this
To the extent it's necessary to protect the
10
constitutional rights of members of the plaintiff class, I have
11
the authority to order the County to do it, don't I?

MR. WALKER:
12
13
that --
THE COURT:
14
15
care.
17
Court --
THE COURT:
18
MR. WALKER:
19
21
THE COURT:
You can respectfully disagree; I don't
And I do respectfully disagree that this
Is that based on the McMillian case?
On McMillian and another case that I
All right.
of what we're getting at here.
IEN
22
Actually, Your Honor, I'm not sure
think I've probably cited to the Court before.
DS
20
16:23:24
But so that's really the gist

You're preserving an argument
23
that while you are liable for funding the Sheriff's Office, or
24
while you have to fund the Sheriff's Office, you don't have to
25
do anything independently to cure constitutional violations in
FR
16:22:59
16:23:13
MR. WALKER:
16
16:22:42
16:23:40
which the Sheriff's Office engages, is that -MR. WALKER:
2
3
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4804
Honor.
THE COURT:
MR. WALKER:
THE COURT:
I would put it a little differently, Your
Well --
By Arizona statute --
16:23:53
Well, Arizona statute does not -- I mean,
I don't want to say it doesn't concern me, but I'm not sure
that Arizona statutes trumps the constitutional rights of the
members of the plaintiffs' class.

MR. WALKER:
10
And I wouldn't contend that they do, Your
11
Honor, but my point is under Arizona law, the various
12
institutions of county government are assigned, carefully
13
delineated and circumscribed powers.
14
problem not just in terms of the collision of federal law and
15
state law, but under other aspects of the Constitution like the
16
Tenth Amendment, if this Court were to issue an order requiring
17
the County to do something beyond its lawful powers.

THE COURT:
18
And I think there is a
20
Arizona's as it pertains to rather unique allocations of
21
political responsibility at the county level, does it?
DS
But certainly Alabama does not have a system that is akin to
IEN
MR. WALKER:
16:24:50
There are differences, certainly, between
23
governmental structure in Alabama and in Arizona.
24
think four of the factors taken into consideration by the Court
25
in determining that the sheriff in that case was not acting on
FR
16:24:25
Well, we may take this up again later.
19
22
16:24:05
However, I
16:25:14
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4805
behalf of the County exists here as well.
authority of sheriffs are granted by state law under both
Arizona and Alabama statutes and constitutional provisions.

THE COURT:
And those are the
Well, I mean, I think to the extent that
you're going to start to argue that there's -- the sheriff did
something here that the County disapproves of, I don't think
I'm going to allow you to argue that at this point.
some future date, but I'm not going to -- I'm not going to
allow that kind of argument now, for reasons that I think you
10
I may at
understand even if you respectfully disagree.

MR. WALKER:
11
16:25:49
I do, I think, understand the thinking of
12
the Court, Your Honor.
13
remedial issues, and I did hear the Court earlier say that the
14
parties are going to have an opportunity to address those
15
matters in detail later on.

THE COURT:
16
MR. WALKER:
17
If I could just say a few words about
16:26:13
Um-hum.
But the point I would ask the Court to
bear in mind as it makes its findings of fact and conclusions
19
of law is that this case has already resulted in extraordinary
20
expense that has had to be borne by the taxpayers, and I know
21
from the Court's prior comments it's well aware of that.
22
are talking about, in the context of this contempt proceeding,
IEN
DS
18
23
the actions or failures to act on the parts of specific
24
individuals.
FR
25
THE COURT:
16:25:35
16:26:27
We
I appreciate that, and I don't mean to say
16:26:46
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4806
that it's irrelevant to me.
money that the County spends.
question of allocation for the County Board of Supervisors?
They can determine how much to fund Sheriff Arpaio, and how
much to fund the MCSO, and how to allocate County resources?

MR. WALKER:
It's not irrelevant, the amount of

But really, isn't that a
Actually, Your Honor, the Board of
Supervisors' discretion with respect to the sheriff's budget,
not just in this county but statewide, is fairly
circumscribed --
THE COURT:
10
12
By what?
MR. WALKER:
11
16:27:01
16:27:19
It's A.R.S. -- I want to say 11-440A.
It
might be --
THE COURT:
13
440A?
MR. WALKER:
14
THE COURT:
15
It might be 441A.
Okay.
MR. WALKER:
16
-- 444A.
But in any event, I think it is an issue
17
that the Court can and should take into account, because public
18
interest, of course, is a factor to be taken into account in
19
the fashioning of any equitable relief.
And again, I'm putting to one side the victims'
DS
20
compensation fund.
22
plate on that, and there's no dispute about the willingness of
IEN
21
16:27:53
The County is prepared to step up to the
23
the County to participate in the formulation of a reasonable
24
fund designed to compensate victims of any unconstitutional
25
violations of the Court's orders.
FR
16:27:31
16:28:16
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4807
But in terms of fashioning other relief, we would just
1
2
ask that the Court bear in mind the burden on the taxpayers,
and whether it's fair and equitable for that -- the burden to
fall to them for the conduct of specific individuals in this
instance.
16:28:36
THE COURT:
Well, we can discuss that if it becomes
relevant at a future date, but I appreciate your highlighting
your concern in that respect.
MR. WALKER:
THE COURT:
10
Oh, actually, yeah, you have four more minutes, and
then you have four minutes, Ms. Wang.

MR. MASTERSON:
15
MR. WALKER:
16
THE COURT:
THE COURT:
MR. WALKER:
IEN
22
MR. WALKER:
DS
21
23
24
FR
25
Thank you.
16:29:12
Your Honor, might I just ask a question?
monitor's bills, may we have two weeks for the other filing --
19
20
I do, Judge.
On the submission of the additional information on the
17
18
16:28:46
four more minutes.
13
14
All right.
Mr. Masterson, you have -- if you want to use them --
11
12
Yes.
-- to get that in?

You may.
16:29:54
You may.
MR. MASTERSON:
Your Honor, two things, and I'll start
with the May 14, 2014 order.

There has been evidence that the Court and the monitor
16:30:10
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4808
was dissatisfied, in fact, that -- the allegation being that
the MCSO, that specifically Chief Sheridan disregarded this
Court's order with respect to gathering of the audio/video
recordings, and disregarded the Court's instruction to work
with the monitor on that particular issue.
16:30:38
The only thing I want to point out, which I did not
6
7
point out in my first appearance up here, is the specific
language utilized by the Court during the hearing.
you reference in the order to show cause dated 2-12-15,
10
And Judge,
document 880, at page 23.
And why it interests me and I thought I should call it
11
12
to the attention of the Court, is that in one section you note
13
that you concluded -- and I'm quoting -- "I'm going to direct
14
the monitor to work with you on a plan that he can approve
15
that's your best thinking about how you can, without resulting
16
in any destruction of evidence, gather all the recordings, and
17
then based on what you find, and/or maybe beginning before you
18
can assess what you find, depending upon your thoughts, you
19
result in an appropriate and thorough investigation."
Now, on the same page in footnote 9, you again quote:
DS
20
"I will have my monitor work with you to develop a pro-if you
22
want" --
IEN
21
23
24
FR
25
16:30:59
16:31:23
16:31:43
I'm assuming you cut off "program" or "protocol" or
something like that; it says "pro."

-- "if you want his assistance," end quote.
16:32:07
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4809
Then you say, quote:
"[D]o your best, and I mean your
level best, come up with a plan, review it with the monitor if
you will, if you need to, to recover all of that data."
My position is that what the Court was instructing
4
5
MCSO to do could be subject to interpretation there.
think, certainly, one interpretation is that the Court's
saying:
get the monitor's approval, and you develop a low-key, quiet
way to get this evidence and get it to the monitor and before
10
Look.
the Court.
Or --
16:32:50
Let me just ask you:
Are you withdrawing
12
your -- or are you attempting to withdraw your admission as it
13
pertains to Count 3?
MR. MASTERSON:
14
THE COURT:
15
THE COURT:
17
18
THE COURT:
on that issue.
Yes, sir.
Okay.
MR. MASTERSON:
IEN
22
I'm just --
So that's really if I'm going to consider
MR. MASTERSON:
DS
21
No, sir.
16:33:00
any criminal charge on that?
19
20
No, sir.
Okay.
MR. MASTERSON:
16
16:33:08
And that's all I wanted to bring out
The only other thing, it concerned me, I got to
23
thinking after I sat down, with respect to the 1459 IDs and the
24
Court's reference to Chief Sheridan, Chief Sheridan was not
25
involved in providing information to the monitors.
FR
16:32:30
You work with the monitor, make darn sure you
THE COURT:
11
Now, I
16:33:26
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4810
THE COURT:
My concern is both his subsequent
testimony he gave to the monitors and his direction in the
first place to suspend, and the conversation that he testified
to -- and I'll review that carefully -- the conversation he
testified to that he testified he had with Bailey before the
monitor's visit.
sure I accept, but even if I accept -- and I appreciate the
good faith of your argument as to the February order -- I have
concerns about the December order and what Chief Sheridan did.
11
I have concerns -- even if I accept, I'm not
MR. MASTERSON:
10
Okay.
I only wanted to clarify with
THE COURT:
In other words, what you're telling me is
13
in that meeting, Chief Sheridan himself never said:
14
have these.
MR. MASTERSON:
15
THE COURT:
16
THE COURT:
23
That's my understanding.
Thank you very much, Judge.
Thank you.
DS
Oh, I'm sorry.

MR. YOUNG:
That's
Ms. Wang.
Mr. Young.
Your Honor, I promised Ms. Wang I will
say.
First with --
24
THE COURT:
Can you say those in two minutes?
25
MR. YOUNG:
I will try.
FR
16:34:27
share our four minutes with her, so I have six things I want to
IEN
22
Okay.
16:34:19
all I have.
19
21
We don't
Exactly.
Right.
MR. MASTERSON:
17
20
16:34:06
respect to the communications made to the monitor.
12
18
16:33:48
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4811
With respect to Lieutenant Sousa, he did not take all
1
2
reasonable steps.
did not communicate, even with the people who work under him,
anything about the injunction.
MCSO didn't take that basic step of communicating it to
everyone; he didn't take that basic step with communicating it
to the people who worked under him.
10
He could have done that; the
16:34:56
Second, with respect to Chief Sheridan, there's a long
8
9
On pages 2602 and 2603 he testified that he
list of exhibits that make it clear that he was aware of the

injunction: 187, 2511, 2512, 2513, 2514.
16:35:14
Exhibit 2878 are the minutes of a Board of Supervisors
11
12
meeting where the injunction was discussed and which Chief
13
Sheridan attended.
We also have Chief MacIntyre saying that he did tell
14
15
Chief Sheridan about the injunction at the same meeting where
16
he told Sheriff Arpaio, and that's at page 1880, line 2, to
17
1881, line 8.
Third, with respect to the Casey letter in Exhibit
18
2514, Mr. Masterson said this shows good faith.
It actually
20
shows exactly the opposite, and it shows the unclean hands.
21
you look at page 1802 of the transcript, you'll see that
22
Mr. Casey says that he told Sheriff Arpaio if push came to
IEN
DS
19
If
23
shove and it goes before the Court, it's likely a violation.
24
Now, I did decide, after being talked to by Sheriff Arpaio, to
25
send this letter.
FR
16:35:32
He said that he thought it would be a good
16:35:54
16:36:11
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4812
faith argument because it wasn't definitive.

But he says, at line 20 and 21:
Whether it would ever
prevail was what I told my client what I thought the odds of
were.
letter, the argument in this letter likely does not set forth a
winning argument.
intention; it shows unclean hands.
Mr. Casey
testified that Mr. Sands told them that the backup plan was
10
politically motivated.
11
not one six nine nine as I said before.
That's at page 1690, one six nine zero,
13
10, 2014 copy of the time line implicating the Court in this
14
bogus conspiracy.
15
telling the investigator, Mr. Zullo:
16
months after the January 2014 meeting.
17
investigators Zullo, Mackiewicz, and Anglin not to be doing any
18
investigation, so I think I disagree with Mr. Masterson's
19
semantic argument.
That's at 2963A.
That was Mr. Montgomery

Here it is.
That's nine
DS
Sixth, finally, on the statute of limitations issue
that Mr. Murdy mentioned, Mr. Murdy is incorrect on that.
22
one-year statute of limitations in 18 U.S.C. 3285 applies to
IEN
16:37:18
That's a long time for
21
18 U.S.C. 402, which is criminal contempt where the
24
contemptuous act also violates a criminal statute of the United
25
States or the state.
That's not the case here.
16:37:39
The
23
FR
16:36:55
Fifth, I have an exhibit number now on the September
12
20
16:36:34
So I think that shows bad faith; it shows
Fourth, I miscited a page earlier.
8
9
That is, he told Sheriff Arpaio at the time that this
In this case,
16:38:01
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4813
the applicable contempt statute under the criminal laws is
18 U.S.C. 401, and to that statute there's a five-year
statutory limitation period set forth in 18 U.S.C. 3282.
And I'll yield the rest of my time to Ms. Wang.
5
6
THE COURT:
Ms. Wang.
MR. YOUNG:
Our time.
MS. WANG:
16:38:26
First in response
to Mr. Masterson on what the Court's order was on May 14, 2014,
the transcript of the hearing indicates not only what
10
Mr. Masterson cited from the order to show cause, but also that
11
at page 72, the Court ordered that no information will be
12
withheld from the monitor, and at pages 73, 94, and 96, that
13
any dispute with the monitor about the plan for gathering the
14
videos should be brought to the Court, and the sheriff agreed
15
to that at all of those same pages of the transcript.
16:39:00
Second, Your Honor, as to the Knapp IDs, the 1459 IDs,
16
17
Mr. Masterson argued that it was not clear that those IDs had
18
been seized within the meaning of the Court's February 2015
19
order.
20
want to point out that Chief Sheridan acknowledged that based
21
on his knowledge of how the property room works, items in the
22
property -- in the destruction bin would have been confiscated
IEN
DS
As I've already said, that is beside the point, but I
23
by a deputy.
24
that by July 17th, 2015, he knew that about 500 of the 1459 IDs
25
belonged to members of the plaintiff class.
FR
16:38:39
16:39:22
And he also acknowledged
16:39:44
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4814
On the advice of counsel issue, Your Honor, our
1
2
position is that first, it was not reasonable for counsel to
direct Bailey as she did; second, it also was not reasonable
for defendants to rely on that direction, for two reasons, Your
Honor.
16:40:02
First, under the Bush case in the Ninth Circuit,
6
7
626 F.3d 527, a party trying to rely on advice of counsel must
have given a full accounting of all relevant facts to counsel.
That did not happen here.
In fact, quite the opposite
10
happened, as Chief Sheridan directed the investigation to stop.
11
Second, Your Honor, under the Cheek decision, which is
12
a Seventh Circuit case, 3 F.3d 1057, a party seeking
13
endorsement from counsel of a planned course of conduct can't
14
rely on advice of counsel.
15
on this record demonstrate that under those two cases and
16
others that we could brief if the Court wishes, there is no
17
valid advice-of-counsel defense to what happened with the Knapp
18
IDs.
And I think the facts in this case
16:40:42
Finally, Your Honor, very briefly, Mr. Killebrew
19
mentioned the predetermination hearing process and the
21
grievance process, and Your Honor asked him whether that was an
22
issue of policy or simply a matter of individual outcomes here.
IEN
DS
20
23
We saw at least three outcomes where sustained findings were
24
overturned in those stages of grievance or predetermination
25
hearing, but in addition, it was a matter of policy.
FR
16:40:19
16:40:57
16:41:14
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4815
There is no -- there is a regular practice that
1
2
written explanations are not given for decisions in the
grievance or predetermination hearing.
and 1237.
That's Sheridan at 1207
PSB is not involved in either of those stages of the
5
6
process and is not permitted to make any submissions, Bailey
3167 and 68.
There is no policy to prevent the principal in an
8
9
investigation from abusing the PDH process by deliberating
10
holding -- withholding evidence until the PDH so that the PSB
11
investigator cannot rebut that evidence, Bailey 3181 to 82.
13
designee to rescind or substitute discipline.
14
GC-17 policy at page 5.
That is in the
Bailey testified to that at 3234.
And finally, Your Honor, Chief Olson testified, quote,
15
16
"Our system has a lot of leeway in it," end quote, on how to
17
categorize violations in the discipline matrix, and I covered
18
that in discussing what happened in the Ruben -- sorry, in the
19
Sergeant Lawhorn case.
DS
And finally, aside from the predetermination hearing
and grievance process, the record shows that the PSB commander
22
can direct findings of not sustained.
IEN
21
and there was testimony as to that by Captain Bailey at 3842
24
and 43.
FR
THE COURT:
Thank you.
16:42:10
16:42:27
That was Exhibit 2068,
23
25
16:41:46
There is unbridled discretion in the sheriff or his
12
20
16:41:30
All right.
I have given you
16:42:55
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4816
all deadlines of two weeks from today to submit written
submissions.
nobody's going to be through fairly or easy, but nobody wants
to direct its efficient proceeding more than I do.
Nobody wants to be through with this -- or
But I have a lot of evidence, a lot of testimony.
5
6
What I've asked you to respond to will be helpful.
my findings out as soon as possible, and then I'll schedule
another hearing in which parties can discuss remedies if any
are appropriate.
11
to proceed?
THE COURT:
13
Yes, Your Honor.
You want to find a microphone, please,
Mr. Eisenberg?
MR. EISENBERG:
15
Yes, sir.
16:43:44
Your Honor, will that two-week period also be the
16
17
time frame in which specially appearing counsel can file their
18
memoranda with respect to criminal referral?

THE COURT:
19
You may do that if you wish.
As I've
indicated, and I'm not sure you were here, Mr. Eisenberg,
21
Mr. McDonald and Mr. Stein wish to be heard after the remedies
22
are discussed.
IEN
DS
20
16:44:05
You can wait till that time if you wish.
23
Mr. Birnbaum did not wish to wait that long and so he filed his
24
memorandum.
25
argument.
FR
16:43:32
Yes.
MR. EISENBERG:
12
14
I will get
Does anybody have any questions about how we are going
10
16:43:19
I assume he did that in lieu of request for oral

16:44:23
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If you wish to do that, you can file it at any time,
1
2
but as I indicated to him, and as I've indicated to
Mr. McDonald and Mr. Stein, you get one shot.

MR. EISENBERG:
Oh, I'll take one shot, Your Honor,
but I'll wait for the Court to make its findings of fact.
I assume that, from what you just said, that will come before
the two-week period in which we have -- or in which -THE COURT:
Oh, no.
MR. EISENBERG:
THE COURT:
10
Oh, be afterwards.
You have two weeks from today.
this is really the parties.
12
list of questions on Wednesday afternoon.

MR. EISENBERG:
THE COURT:
14
And I'm --
I saw them, Your Honor.
I don't know whether you were with us
yesterday, but most parties were, when we discussed the fact
16
Mr. Masterson said a good faith attempt to respond to those
17
inquiries would really set us off.
18
two weeks to file in writing whatever he wants in response to
19
those written questions.
Not just him, all parties.
DS
So the parties have two weeks to respond to my
questions before I -- because I'm not going to get the findings
22
of fact done within two weeks, clearly.
IEN
16:44:59
And I agreed, so I gave him
21
16:45:17
But the nature of
23
those questions, really, was to help me to organize, marshal,
24
and understand some of the exhibits in the case.
25
some benefit in that regard as well as some of the testimony
FR
16:44:46
I filed, as you may be aware, a
15
20
16:44:33
No, no, no, no, no.
11
13
And
I've received
16:45:33
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4818
today from the arguments of counsel, but that was -- that was
what that was for.
Does that clarify matters for you at all?
MR. EISENBERG:
I guess the bottom line, then, for
myself, is that at some point in time, the Court will issue its
findings of fact with respect to civil contempt.

THE COURT:
That's correct.
MR. EISENBERG:
And then, after that, I would be
allowed to make whatever submission I would want concerning -THE COURT:
10
You may after that if you wish.
11
also do it before that if you wish.
12
but you only get one submission.
13
MR. EISENBERG:
You may
Well, I'm going to wait for the
Court's findings of fact because I think it will help channel
15
my thinking into what I would say with respect to a criminal
16
referral pertaining to Lieutenant Sousa.

THE COURT:
17
THE COURT:
19
MR. WALKER:
23
16:46:30
Not a question, Your Honor, but the
A.R.S. Section --
24
THE COURT:
25
MR. WALKER:
FR
Any other questions by anybody?
statutory cite that I didn't have off the top of my head is
IEN
22
Thank you.
Mr. Walker.
DS
21
16:46:21
All right.
MR. EISENBERG:
18
16:46:09
Mr. Birnbaum's done it,
14
20
16:45:51
Give me just a second, will you?

Sure.
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THE COURT:
MR. WALKER:
THE COURT:
8
9
10
11
12
13
14
15
16
17
18
IEN
DS
19
22
23
24
FR
25
All right.
Thank you.
Have a nice
(Proceedings recessed at 4:47 p.m.)
21
It's A.R.S. Section 11-444A.
Thanksgiving.
20
Go ahead.
I'll see you when I see you.
4
5
All right.
16:47:04
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4820
C E R T I F I C A T E
2
3
4
5
6
I, GARY MOLL, do hereby certify that I am duly
7
8
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
I FURTHER CERTIFY that the foregoing pages constitute
10
11
a full, true, and accurate transcript of all of that portion of
12
the proceedings contained herein, had in the above-entitled
13
cause on the date specified therein, and that said transcript
14
was prepared under my direction and control.
15
16
DATED at Phoenix, Arizona, this 23rd day of November,
17
18
2015.
20
21
IEN
22
DS
19
23
24
FR
25
s/Gary Moll

Melendres v. Arpaio #1583 Nov 20 2015 Transcript - Closing Argument

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Melendres v. Arpaio #1583 Nov 20 2015 Transcript - Closing Argument

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

Joseph M. Arpaio, et al.,

(Evidentiary Hearing Day 21, Pages 4581-4820)

BEFORE THE HONORABLE G. MURRAY SNOW

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 1 of 240

Proceedings taken by stenographic court reporter

Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 2 of 240

For the Plaintiffs:

American Civil Liberties Union of Arizona

Covington & Burling, LLP

University of California Irvine School of Law

For the Defendant Joseph M. Arpaio and Maricopa County

For the Defendant Maricopa County:

Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 3 of 240

For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights Division

For Executive Chief Brian Sands:

Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 4 of 240

Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 5 of 240

This is civil case number 07-2513,

Good morning, Your Honor.

Good morning, Your Honor.

Dan Pochoda from the ACLU

of Arizona for plaintiffs.

Your Honor, Anne Lai for plaintiffs.

Good morning, Your Honor.

Killebrew, Cynthia Coe, and Maureen Johnston for the United

Good morning, Judge.

and Joe Popolizio for Sheriff Arpaio and the alleged

contemnors, and we have Holly McGee with us.

and Michelle Morin, Covington & Burling, for plaintiffs.

and Andre Segura of the ACLU for plaintiffs.

Counsel, please announce your appearances.

Melendres, et al., v. Arpaio, et al., on for oral argument.

Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 6 of 240

Good morning, Your Honor.

on behalf of Maricopa County.

Good morning, Your Honor.

behalf of retired Executive Chief Brian Sands.

Good morning, Your Honor.

making a special appearance for Sheriff Joe Arpaio.

Good morning, Your Honor.

Eisenberg, specially appearing on behalf of Lieutenant Sousa.

I just want to take care of a few matters before we

get started and make sure I understand things.

had a telephonic conference in which I invited the parties, for

I'd filed on Wednesday today, that would be appreciated, but I

authorized you to file any answers in writing up to two weeks

after today, post-oral argument.

I'm just going to put that on

conversation, asked me to identify any excerpts in the record

that I was considering, or was aware that I was considering, so

the parties could address them.

and position papers filed by the parties that went up -- that

Mr. Murdy, in that argument, or in the course of the

I identified several pleadings

Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 7 of 240

preceded the preliminary injunction motion, and Ms. Iafrate's

representation sometime later pertaining to Chief MacIntyre's

duties with respect to the receipt of correspondence from

them out there so you'll know.