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

UNITED STATES DISTRICT COURT1 FOR THE DISTRICT OF ARIZONA 2 3 4 5 Manuel de Jesus Ortega Melendres, et al., Plaintiffs, 6 7 8 vs. Joseph M. Arpaio, et al., Defendants. 9 10 11 12 13 14 18 DS 19 Court Reporter: IEN 23 24 FR 25 Phoenix, Arizona November 20, 2015 9:01 a.m. (Evidentiary Hearing Day 21, Pages 4581-4820) 17 22 No. CV 07-2513-PHX-GMS BEFORE THE HONORABLE G. MURRAY SNOW 16 21 ) ) ) ) ) ) ) ) ) ) ) REPORTER'S TRANSCRIPT OF PROCEEDINGS 15 20 4581 OF TH EF OG BO W .CO M 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 2 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4582 A P P E A R A N C E S 1 2 3 4 5 6 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 7 8 9 American Civil Liberties Union of Arizona By: Daniel J. Pochoda, Esq. P.O. Box 17148 Phoenix, Arizona 85011 10 11 12 Covington & Burling, LLP By: Stanley Young, Esq. By: Michelle L. Morin, Esq. 333 Twin Dolphin Drive, Suite 700 Redwood Shores, California 94065 13 14 15 University of California Irvine School of Law Immigrants' Rights Clinic By: Anne Lai, Esq. 401 E. Peltrason Drive, Suite 3500 Irvine, California 92697 16 17 19 20 21 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 Phoenix, Arizona 85012 IEN 22 For the Defendant Maricopa County: Walker & Peskind, PLLC By: Richard K. Walker, Esq. SGA Corporate Center 16100 N. 7th Street, Suite 140 Phoenix, Arizona 85254 DS 18 23 24 FR 25 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 3 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4583 A P P E A R A N C E S 1 2 3 4 5 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 6 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 7 8 9 10 11 12 13 14 15 16 17 For Executive Chief Brian Sands: Lewis, Brisbois, Bisgaard & Smith, LLP By: M. Craig Murdy, Esq. 2929 N. Central Avenue, Suite 1700 Phoenix, Arizona 85012 For Lieutenant Joseph Sousa: David Eisenberg, PLC By: David Eisenberg, Esq. 2702 N. 3rd Street, Suite 4003 Phoenix, Arizona 85004 Also present: Sheriff Joseph M. Arpaio Executive Chief Brian Sands Chief Deputy Gerard Sheridan Lieutenant Joseph Sousa 18 20 21 IEN 22 DS 19 23 24 FR 25 I N D E X 1 2 Witness: 3 5 6 E X H I B I T S No. Description 8 10 11 M I S C E L L A N E O U S 12 Argument 13 By By By By By By By By By 15 16 17 Mr. Ms. Mr. Mr. Mr. Mr. Mr. Mr. Ms. 18 21 IEN 22 23 24 FR 25 Young Wang Killebrew Masterson Murdy Walker Masterson Young Wang DS 19 20 Admitted (None) 9 14 Page (None) 4 7 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 4 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4584 Page 4597 4633 4683 4699 4771 4796 4807 4810 4813 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 5 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4585 P R O C E E D I N G S 1 2 3 4 5 This is civil case number 07-2513, MS. WANG: 10 Good morning, Your Honor. Cecillia Wang THE COURT: Good morning. MR. YOUNG: Good morning, Your Honor. Stanley Young THE COURT: 13 Good morning. MR. POCHODA: Good morning. Dan Pochoda from the ACLU of Arizona for plaintiffs. 15 THE COURT: 16 MS. LAI: 17 Good morning. 09:02:11 Your Honor, Anne Lai for plaintiffs. THE COURT: 18 Good morning. MR. KILLEBREW: Good morning, Your Honor. Paul Killebrew, Cynthia Coe, and Maureen Johnston for the United 20 States. DS 19 THE COURT: 09:02:20 Good morning. MR. MASTERSON: IEN 22 Good morning, Judge. John Masterson 23 and Joe Popolizio for Sheriff Arpaio and the alleged 24 contemnors, and we have Holly McGee with us. FR 25 09:02:03 and Michelle Morin, Covington & Burling, for plaintiffs. 12 21 09:01:51 and Andre Segura of the ACLU for plaintiffs. 9 14 THE CLERK: Counsel, please announce your appearances. 7 11 Please be seated. Melendres, et al., v. Arpaio, et al., on for oral argument. 6 8 THE COURT: THE COURT: Good morning. 09:02:01 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 6 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4586 MR. WALKER: 1 Good morning, Your Honor. 2 on behalf of Maricopa County. 3 THE COURT: 5 7 Mel McDonald THE COURT: Good morning. MR. MURDY: Good morning, Your Honor. 09:02:40 Craig Murdy on behalf of retired Executive Chief Brian Sands. THE COURT: 9 Good morning. MR. EISENBERG: 10 11 Good morning, Your Honor. making a special appearance for Sheriff Joe Arpaio. 6 8 Good morning. MR. McDONALD: 4 Richard Walker Good morning, Your Honor. David Eisenberg, specially appearing on behalf of Lieutenant Sousa. THE COURT: 12 Good morning. Is that everybody? I just want to take care of a few matters before we 13 14 get started and make sure I understand things. 15 had a telephonic conference in which I invited the parties, for 16 the most part, if they could answer any of the questions that 17 I'd filed on Wednesday today, that would be appreciated, but I 18 authorized you to file any answers in writing up to two weeks 19 after today, post-oral argument. 20 the record. I'm just going to put that on 09:03:29 conversation, asked me to identify any excerpts in the record 23 that I was considering, or was aware that I was considering, so 24 the parties could address them. 25 and position papers filed by the parties that went up -- that FR 09:03:11 Mr. Murdy, in that argument, or in the course of the IEN 22 Yesterday we DS 21 09:02:54 I identified several pleadings 09:03:48 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 7 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4587 1 preceded the preliminary injunction motion, and Ms. Iafrate's 2 representation sometime later pertaining to Chief MacIntyre's 3 duties with respect to the receipt of correspondence from 4 Mr. Casey. 5 them out there so you'll know. 6 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, 7 8 Chief Trombi, and others, including your predecessors, 9 Mr. Casey and Ms. Iafrate, made representations to the Court 10 about various materials they'd found. 11 well. 12 on those things and where they came from that I won't have to 13 refer back to statements made, for example, by Chief Deputy 14 Sheridan in which he indicated these things, or Chief Trombi or 15 you or Mr. Casey. 16 those statements, and so if you want to address them and you 17 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, 18 about the 50 hard drives in the custody -- that are currently 20 in the custody of the marshal. 21 hard drives were the hard drives provided by Dennis Montgomery 22 to the MCSO. IEN DS 19 You indicated that those 09:05:09 I'm not sure that we've ever had -- as I thought 23 about it last night, I'm not sure that we've ever had 24 affirmative testimony that establishes that, and that's 25 probably because you had made the affirmative representation to FR 09:04:09 09:05:26 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 8 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4588 me, and that would be another one that I would be looking at. I did read this morning -- I've had several things 2 3 filed. 4 executive Chief Sands' sort of summary, assuming that you were 5 using that in lieu of spending time today, Mr. Murdy. 6 also, Chief MacIntyre has filed a request that he be released 7 from any consideration of criminal prosecutions. And Arpaio's deposition testimony, noting that it is consistent 10 with his trial testimony. 11 that he relied on his subordinates to implement the preliminary 12 injunction and in his deposition testimony he indicates which 13 subordinates, apparently, he relied on. 14 you have a position about whether or not I can consider 15 deposition testimony, but I raise it for your consideration. For example, his trial testimony I don't know whether 17 Sheriff Arpaio's hearing testimony. 18 something similar in his hearing testimony; I'm not sure if 19 that specific factual specification was made. 20 of some interest to me when I'm considering findings of fact 21 and conclusions of law, so I just raise it for your attention 22 that at least that deposition testimony purports to say that he 09:06:26 I remember him saying IEN DS And it might be 23 was relying on Chief Deputy Sheridan and Executive Chief Sands 24 to implement the terms of the preliminary injunction order. FR 09:06:05 I'm not sure that specifications were not made in 16 25 09:05:45 In those motions they cite to, for example, Chief 8 9 I read, for example, at least briefly reviewed, Those are the only other things for the parties that I 09:06:44 09:07:03 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 9 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4589 1 could think of overnight that may be avowals that have been 2 made in the course of hearings, but as I say, there may be 3 others. 4 attention before I issue any findings of fact and conclusions 5 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 6 7 reconsideration, Mr. Masterson, I do share, to some extent, 8 sympathy with the plaintiffs when they point out that you 9 didn't really object to any specific evidence, and I understand 10 that. 11 an argument that a confidential informant is not necessarily in 12 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 13 14 be clear. 15 confidential informant, it's more like they were paying 16 Mr. Montgomery for his services, although there was the aspect 17 that they were also paying him for access to records that he 18 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 19 don't think it was error to admit any testimony that I can 21 think of because, A, there may -- it depends on his statement 22 whether or not he was in an agency relationship or making a IEN DS 20 23 statement that was in the course of his agency relationship. 24 But if he wasn't, I'm not necessarily going to take what 25 Mr. Montgomery says for truth of the matter asserted on any FR 09:07:23 09:08:22 09:08:40 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 10 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4590 event -- in any event. But he was involved in conversations with the other 2 3 representatives of MCSO, and so I'm either going to consider -- 4 if it gets down to me parsing those audiotapes that I think is 5 what you're talking about, I will determine whether or not it's 6 a statement made by Mr. Montgomery, and if it is a statement 7 made by Mr. Montgomery, whether that statement can be 8 considered in an -- made in any sort of an agency relationship 9 with MCSO. And if it's not, I'm going to consider whether or 10 not I'm going to consider the statement for the truth of the 11 matter asserted, which I think is, you know, may well not be 12 the case but it still, I think, overcomes the hearsay 13 exception. 09:09:19 So I guess that's how I'll approach those audiotapes 14 15 when I listen to them. 16 there's any portion that, for some reason, doesn't qualify for 17 a hearsay exception and is substantive, I don't know that I 18 want to parse through and say that with respect to every 19 statement that I don't think is relevant. 20 the plaintiffs, if I think a statement is relevant to my 21 findings of fact, but as I review it, because I've admitted 22 these tapes in evidence, if I think there's some basis for your If I think, when I listen to them, that DS IEN 09:09:32 But in fairness to 23 motion for reconsideration, I will alert the parties so that 24 the plaintiffs can address whether or not I should 25 substantively consider it, or consider it not for the truth of FR 09:08:59 09:09:57 09:10:16 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 11 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4591 1 the matter assert -- for the truth of the matter asserted even 2 if I find that there is no agency relationship established. Is that -- everybody understand that? 3 Maricopa County -- oh, Mr. Masterson. 4 MR. MASTERSON: 5 Just one thing, Judge. I think it 6 will apply to more than the audiotapes, because there are a 7 number of e-mails that have statements made -THE COURT: 8 Well -- MR. MASTERSON: 9 THE COURT: 10 -- by Mr. Montgomery. -- I may or may not do that, but, again, 11 I'm not going to get bogged down in any of that stuff. 12 going to look at it all, and if there's something that's 13 important, I may raise it, but I've admitted those exhibits. 14 We didn't have this discussion -- I mean, we did have a little 15 bit of this discussion towards the end of the last day of 16 evidence, but I just can't imagine that there's anything in 17 those tapes that either isn't made in an agency relationship or 18 that I'm going to consider for the truth of the matter 19 asserted. 20 exception and it could be either damaging to the plaintiffs or 21 damaging to you if I were to consider it, I'll raise it with 22 you. I'm DS IEN MR. MASTERSON: 24 MR. YOUNG: FR 09:10:43 09:11:02 But if there's something that falls into that 23 25 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 09:11:27 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 12 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4592 1 what this motion concerns, and it's unfair to us to have such a 2 motion be considered to preserve any error because if there 3 were an objection to a document or a recording that's already 4 been admitted, or a statement that's already been admitted, we 5 should have the chance to address that objection and -THE COURT: 6 Didn't I just say I would give you that 7 object -- give you that chance if I thought there was anything 8 that merited my raising it with you? 9 10 11 12 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 14 given you matters that remain under seal that I think maybe 15 should go out from seal, and I know the court reporter 16 indicated to me last night that some of you had asked for 17 copies of those particular transcripts, so I'll expect that 18 within two weeks, if there's anything that you think still 19 needs to be under seal, you'll let me know that and let me know 20 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 25 clients, or whether or not the monitor might have highlighted FR 09:12:17 Also, Mr. Masterson, I remember a couple of weeks ago IEN 22 DS 13 21 09:11:49 09:12:46 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 13 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4593 1 information for you, because that was the exhibit I'd given to 2 you of papers that the monitor had given to me. And I thought you were going to identify for me the 3 4 documents that you wanted to know where the highlighting came 5 from, and maybe that isn't where we left it, but that's where I 6 thought we left it and it's left hanging, so I don't have an 7 answer for you. 8 fact, he highlighted anything. 9 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 10 11 and -- and if you have -- if you want to know that, you need -- 12 as far as I recall, and I may be wrong about this, but I 13 thought you were going to tell me what documents you were 14 interested in, and I don't think you've done that yet. But if you do -- I may be wrong. 15 If I am, if you'll 16 still tell me the documents, I'll tell you I will consult with 17 the monitor and see if he highlighted any of that before he 18 transmitted it to me, and if so, what he highlighted, and I'll 19 let all parties know. 21 THE COURT: I will do that, Judge. 09:13:38 09:13:51 Okay. 23 County, we have the objection from the plaintiffs; I don't 24 think I need to decide on that today. 25 plaintiffs objected to noticing the summary. FR 09:13:21 We have the motion for judicial notice from the IEN 22 MR. MASTERSON: DS 20 09:13:03 I did note that the They would rather 09:14:04 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 14 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4594 1 that I notice the invoices, and so maybe the County just wants 2 to provide the paid -- I don't know, do you have some sort of 3 paid receipt that you give the monitor when you pay him those 4 amounts? MR. WALKER: 5 Your Honor, I really don't know the 6 answer to your question, but I can check on that, see if we 7 can -- THE COURT: 8 9 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 10 there would be. If the monitor has been paid, he's been paid 11 in connection with this litigation, as far as I'm aware, by 12 Maricopa County, and I just don't know if the amounts actually 13 paid are subject to dispute, but if you can give me those 14 actual payment amounts, that will be good. And I do note that the other thing that you asked me 15 16 to judicially notice was my own payment order for costs 17 involved in the trial of this case. 18 look at what it was, but I am certainly going to judicially 19 notice my own orders to the extent that the County can 20 demonstrate they actually complied and paid those amounts. 21 I suppose that plaintiffs are in as good a position to tell us 22 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. 24 MR. WALKER: 25 THE COURT: FR 09:14:49 And I haven't gone back to DS IEN 23 09:14:36 Thank you, Your Honor. Is there anything else that any of the 09:15:19 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 15 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4595 parties know that's outstanding before we begin? MS. WANG: 2 Yes, Your Honor. We have two matters along 3 these lines. 4 protective order relating to the Touhy subpoena to the federal 5 government that plaintiffs served. 6 number 1468. 7 stipulation so that we can get the materials from the federal 8 government. MS. WANG: 10 1468? 1468. MR. WALKER: 14 MR. MURDY: 15 MS. WANG: 16 09:15:47 Anybody object to my signature on document MR. MASTERSON: 13 No objection. No objection, Your Honor. No, Your Honor. Thank you, Your Honor. admission of certain deposition testimony of Rollie Seebert in 19 lieu of his live testimony at trial, so we're still waiting for 20 your order on that. 21 THE COURT: DS 18 That's docket number 1469. 09:16:10 If you stipulated to it, the stipulation IEN is granted and I'll consider the testimony. 23 MS. WANG: 24 THE COURT: Anything else? 25 All right. I am hoping, and I assume you gathered FR 09:15:55 The second issue is that the parties stipulated to the 17 22 09:15:32 Doc what? THE COURT: 11 That's document -- docket So we would request the Court's signature on that THE COURT: 9 12 The first is that the parties had agreed to a Thank you, Your Honor. 09:16:21 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 16 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4596 1 that, since I have to pull together all the facts and relevant 2 facts from the hearing and the exhibits from approximately 20, 3 if not 21, days of hearing testimony and the exhibits 4 submitted, that you'll sort of outline your case. 5 assigned two hours and 45 minutes per side. 6 going. We're going to get rebuttal? MS. WANG: 9 We would like to, Your Honor, and we'll -- 10 we'll gauge that as we go along. 11 would like to reserve. Any time that's remaining, we 13 plaintiffs have split up the addressing of the topics. 14 Mr. Young will address the preliminary injunction and the 15 pattern of recalcitrance, including the Seattle investigation. 09:17:02 I will address, with the Court's permission, the 16 17 pretrial discovery violations, the May 14, 2014 events, and 18 matters concerning Internal Affairs. We will take approximately two hours and 20 minutes, 19 and Mr. Killebrew for the United States will take about 25 21 minutes for his summation. IEN DS 20 THE COURT: 09:17:20 All right. 23 So who's going to going to begin? 24 MR. YOUNG: I will, Your Honor. 25 THE COURT: All right. FR 09:16:50 And Your Honor, just to let you know in advance, 12 22 09:16:38 Are the plaintiffs going to reserve any time for 7 8 I've You'll notice that I'm going 09:17:30 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 17 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4597 1 to sit and stand throughout. 2 MR. YOUNG: 3 Your Honor. 4 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 5 6 going to actually show you or play for you video and audio; 7 you've seen that in the hearings that we've had. I do want to say as to the injunction, that what's at 8 9 issue here is the fact that the current leaders of the MCSO 10 violated the Constitution, violated the Court's orders, and 11 then used the agency itself to try to insulate those leaders 12 from the consequences of those violations. 14 not its leaders, and it should be pursuing the enemies of 15 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 IEN 21 23 24 FR 25 09:18:09 The Sheriff's Office should be protecting the public, 13 20 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 09:19:06 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 18 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4598 1 the department had violated any policies of the agency, and 2 that no one should be subject to discipline, notwithstanding 3 the rather valiant efforts of Mr. Vogel both to have the MCSO 4 have an internal -- an independent decision maker, and also to 5 subject the sheriff to that investigation. 09:19:26 Then after this Court's trial findings in 2013 -- and 6 7 in particular, after its decision to appoint a monitor in 8 October 2013 -- the sheriff continued to search for ways to 9 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 12 13 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 16 17 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 19 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4599 1 intentional efforts to conceal and escape the consequences of 2 those violations. 3 sacrifices that rank and file MCSO employees make every day, 4 and the risks that they take to their lives and safety every 5 day. 6 reform to the internal investigations process and other 7 operations, to make sure that the MCSO does not commit these 8 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 1 1639 of the transcript. 2 3 4 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 20 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4600 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 7 the evening of December 23rd reported by Mr. Casey in his 8 e-mail, Exhibit 2534, where he says that Arpaio is conflicted, 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 21 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4601 instruction. 2 3 THE COURT: Now, is this Casey's testimony? MR. YOUNG: Actually, what I just mentioned is Chief 4 Sands' testimony, and I don't have a page number for that right 5 now. 6 7 09:24:36 THE COURT: All right. MR. YOUNG: Then there's a further discussion on 8 January 3, 2012, between Mr. Casey and Sheriff Arpaio. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 22 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4602 1 And at least a couple of the scenarios there, you know, were -- 2 yes, Mr. Casey testified accurate. 3 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 6 told Sergeant Palmer that there were problems with the 7 scenarios, and he expected that those problems would be fixed. 8 And they never were fixed. 9 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 09:27:51 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 23 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 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 6 photograph them, but he told -- but in order to do what he 7 thought was complying with the injunction, he shipped them 8 right off to Border Patrol. MR. YOUNG: 9 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 I think his defense I delegated this to my subordinates and/or Mr. Casey to 09:29:06 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 24 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4604 Isn't that what he said? 1 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 5 the sheriff sets the policy for the department. 6 delegate that. 7 people to the Border Patrol. 8 his subordinates to follow through on what I'm about to 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 25 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4605 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 5 MCSO was bringing to them based solely on unlawful presence. 6 He announced that he would come up with a work-around that 7 would involve precisely the backup plan that he later announced 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 26 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4606 And you see this in his interview with Neil Cavuto on 1 2 June 25, 2012 -- that's Exhibit 200A -- where Mr. Cavuto 3 actually asks him: 4 in jail because of what you're doing to keep detaining people 5 when you don't have state charges? 6 to that is: 7 shows that he is willing to violate an order of the Court in 8 order to keep doing what he wanted, which was to have people 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 27 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4607 1 says it's almost the same conversation he had later on in the 2 fall of 2012 -- do you understand that there is no 3 transportation whatsoever to the federal authorities, that you 4 cannot hold? 5 understand that. 6 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. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 28 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4608 1 2012, relating to United Construction, talks about ICE refusing 2 to arrest two illegal aliens, and Arpaio, quote, refusing to 3 allow them to be released into the streets and ordering 4 deputies to transport them to the Border Patrol, end quote. Exhibit 81 is the shift summary for that raid. 5 It 6 shows at the first -- bottom of the first page and top of the 7 second two particular people who were in the country illegally, 8 but whom ICE refused to take, and the sheriff violated the 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 29 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4609 1 clear prohibition of the injunction. In paragraph 36, 2 Exhibit 67, that's the injunction, which says local law 3 enforcement agencies such as the MCSO may not enforce civil 4 federal immigration law. There are more employment raids that are depicted in 5 6 Exhibits 80, 81, 86, and 89. 7 the fact that the sheriff knows that the Ninth Circuit affirmed 8 the injunction in September 2012. THE COURT: 9 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 09:39:23 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 30 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4610 1 That's at transcript pages 1687 and 1802. 2 it's probably a violation. 3 transcript -- according to Mr. Casey, the sheriff initially 4 said: 5 transcript 1692. 6 Mr. Casey and Chief Sands tell the sheriff that his actions are 7 violating the injunction. 9 I refer later -- page 1691 of the I'm the sheriff and I make the decisions. They had a heated discussion. THE COURT: 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 31 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4611 1 is part of Your Honor's list of questions the other day. And 2 what I would ask is that we be allowed to respond in writing. 3 I know Mr. Sands filed something else this morning; I haven't 4 read that yet. But the issue with the summary judgment motion, let me 5 6 say I think the motion should be denied. 7 considered by the Court in light of the evidence that was 8 admitted, but there's evidence that has been admitted that we 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 32 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 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 6 had a heated discussion. 7 Mr. Casey: 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 33 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 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 3 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. 6 in bragging about this, cites his oath to enforce all the laws 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 34 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4614 1 involving Chief Trombi, Lieutenant Jakowinicz, Lieutenant 2 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 5 report. So a whole department failed to take adequate steps. Specifically as to Lieutenant Sousa, he knew about the 6 7 order. 8 says that, Well, Casey didn't actually say "arrest or release." 9 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 EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 35 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4615 1 He heard Casey's advice during the trial. 2 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 6 Casey said to him about evidence that the injunction was still 7 being violated during trial? 8 MR. YOUNG: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 36 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4616 1 with other things, but he doesn't deny -- but his testimony is 2 not credible. 3 was copied on and take this into account. 4 denied even talking to Mr. Casey about the Melendres case prior 5 to the trial in July-August 2012. 6 953. The Court should look at all the e-mails that he But that's not true. 7 Chief Sheridan That's at transcript 950 and Mr. Casey's time entries show 8 that he talked to Chief Sheridan on December 6, 2011, 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 37 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4617 1 ought to be disciplined. 2 Exhibit 2219, says, Chief Sheridan was actually subject to a 3 potential 40-hour suspension because of his misbehavior with 4 respect to the injunction. 5 process that Ms. Wang will talk about, that was clearly 6 defective and is in need of further reform, that prevented him 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 38 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 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. 4 That's at transcript pages 2502 to 2503. 5 to any affirmative advice, either. No one else testifies 09:54:04 So we have a -- we have no advice here. 6 THE COURT: 7 What about Sousa's testimony that he asked 8 Casey something about if the stop -- if we call ICE during the 9 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 1 advice. OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 39 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4619 THE COURT: 2 Sheriff said -- I can't remember whether 3 Sands confirmed this or not. 4 told Sands to only tell the HSU because that's what the 5 attorney told me to do. 10 09:55:43 whether or not he limited his advice in that way? MR. YOUNG: 8 9 I 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 40 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4620 And it's undisputed -- well -- yeah, it is undisputed 1 2 that Sheriff Arpaio didn't tell Mr. Casey all the facts, which 3 is another necessary element. 4 he was not detaining anyone -- transcript 1642 to 43 -- and he 5 told Mr. Casey that the October 2012 events were a mistake that 6 would not be repeated, transcript 1694. 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 41 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 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, 4 in part because the sheriff didn't -- doesn't contradict 5 anything that Mr. Casey says. 6 THE COURT: And I will -- I will -- I remember. 7 where he doesn't contradict him. 8 I'll take them, though. MR. YOUNG: 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 42 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4622 even before the preliminary injunction, didn't he? MR. YOUNG: 2 3 trying to decide -- 4 THE COURT: He did. And it seems to me that if you're Let me really be clear about that. He 5 represented to this Court in writing that the Sheriff's Office 6 had no authority, and, in fact, had not been attempting in any 7 way to enforce federal civil immigration law since 2009. 8 That's what he represented to this Court before the preliminary 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 43 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4623 1 representing the sheriff in November 2014 before this contempt 2 proceeding ever arose. 3 because of the sheriff's resistance to following the Court's 4 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 7 until compelled to do so. 8 attorney-client privilege back in April, he would never have 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 44 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4624 1 Cheek at 3 F.3d 1057. It's a Seventh Circuit case where the 2 Court notes that: 3 defendant sought confirmation from attorneys of his own view -- 4 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 7 acquiescence, or silence, assuming you believe what chief -- 8 what Lieutenant Sousa and Sheriff Arpaio say, that's not advice 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 45 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4625 1 describing his discussion with Mr. Montgomery at the very 2 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 5 your database. 6 showed me symbols on the side of this, and he says: 7 going to see these. 8 they are. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 46 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4626 1 he hears from Mr. Zullo and Detective Mackiewicz with respect 2 to both Your Honor and Mary Rose Wilcox. 3 determining whether Mr. Montgomery was implanting information 4 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 5 10:07:05 6 conscious about enemies of the sheriff and trying to find out 7 whether Mr. Montgomery can get them access to that kind of 8 information. And Sheriff Arpaio records that in 2074B. THE COURT: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 47 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 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 5 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 8 giving them. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 48 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4628 MR. YOUNG: 1 Exhibit 2090, two zero nine zero, it's an 2 e-mail about Judge Snow. And Mr. Zullo and Mr. Montgomery are 3 talking about data that would not be relevant any more if the 4 contempt issue were resolved. 5 should take a look at what Sheriff Arpaio said about what that 6 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. 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 49 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 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. 4 He talks about 150,000 people, but he admits that the only 5 people in Maricopa County that he can remember is himself, his 6 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 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 50 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4630 Honor -- "ever been investigated by anyone? "Answer: 2 You investigated? "Question: 3 Yes." The answer is: 4 "Question: 5 "Answer: 6 "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 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 51 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4631 1 involving this alleged conspiracy was passed between 2 Mr. Montgomery and Mr. Zullo. 3 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 6 after seeing the time line materials. 7 at a meeting in November 2013 or January 2014, it's not quite 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 52 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4632 1 that he never thought about telling the Court about the fact 2 that he alleges he thought the Court was a victim. 3 transcript 2445. 4 of the Court as being the judge presiding over the case and not 5 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. 8 But for the Court, they did not do that, and the sheriff didn't 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 53 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4633 THE COURT: 1 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: 4 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 7 three grounds for civil contempt; second, the events of May 14, 8 2014, which are a second ground of civil contempt; and finally, 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 54 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4634 THE COURT: 1 Let me ask you, Ms. Wang, there is the 2 original preservation letter, and then there was a preservation 3 of Public Records Access Act request. 4 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: 7 I do not know that, Your Honor, off the top 8 of my head, but we'd be happy to send that to you. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 55 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4635 1 admitted that documents were -- those efforts were not logged 2 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 5 did not capture all of plaintiffs' requests. 6 Exhibit 216, Lieutenant Sousa's e-mail to HSU and other 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 56 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4636 1 resources to adequately comply with plaintiffs' discovery 2 requests and the defendants' obligations, and that it also 3 affected his ability to command HSU, that he was tasked with 4 all of this. Finally, Your Honor -- well, I'd note two other 5 6 things. 7 they were not even asked to look for documents or videos before 8 trial. 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 57 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 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 4 25th, 2009. 5 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 8 the events of May 14, 2014. THE COURT: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 58 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4638 1 Chief Deputy Sheridan, flouted those orders the very same day 2 they issued and then lied to the court-appointed monitor, an 3 arm of the Court, about it. 4 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. 7 believe it's Exhibit 125. 8 general time line is corroborated by Chief Sheridan's 9 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 I Notably, Sheriff Arpaio was also present -- 10 10:26:29 10:27:27 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 59 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4639 Notably, Sheriff Arpaio was present during that 1 2 meeting. He participated in the decision to have Chief Trombi 3 send out that e-mail, and all the while he testified he had not 4 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 7 that took place over the course of more than two hours, in 8 which, as Chief Deputy Sheridan testified, he disputed 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 60 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4640 MS. WANG: 1 That's right, Your Honor. According to the 2 testimony during the hearing, this effort was undertaken in 3 response to a question about an Arizona state-issued grant for 4 such devices. THE COURT: 5 6 MS. WANG: Yes, Your Honor, as long as they related to the traffic stops. THE COURT: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 61 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4641 1 Chief Trombi had sent the e-mail without Chief Sheridan's 2 knowledge. 3 reminded by Chief Trombi that he, Sheridan, was the one who had 4 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 7 Your Honor -- that's Exhibit 39 -- saying that he did not know 8 who directed Chief Trombi to send the e-mail. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 62 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4642 1 Plaintiffs submit that is simply not credible. Even assuming 2 that his order to Trombi had somehow slipped his mind during 3 the two-plus hour meeting with the monitor, the subsequent 4 events, his telephone call with Chief Warshaw and then his 5 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 8 contempt prior to the hearing, tried to waffle, saying that he 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 63 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4643 1 carried out, in violation of the directive to seek the 2 monitor's pre-approval, and to do so quietly, had consequences, 3 Your Honor. 4 the "goat rope." 5 were issued and then rescinded that called attention to the 6 fact that the agency was seeking the video recordings, and 7 heightened the fact that people could use the time to destroy 8 video recordings, contrary to what all the parties discussed 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 64 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4644 1 to the e-mails. And in that sense, a response simply meant a 2 memorandum being turned in to detail video recordings. 3 Exhibits 43, 44, 154, 165, 169, 176, Palmer's 4 testimony at 196 and 197, and Exhibit 2050, all are relevant to 5 show the impact that the approach had on the gathering of the 6 videos. THE COURT: 7 MS. WANG: 8 THE COURT: 9 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. Thank you, Your Honor. 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. Thank you, Your Honor. 10:56:30 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 65 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4645 1 MCSO's internal accountability practices and policies. The 2 record evidence shows that MCSO's IA systems are designed in 3 numerous and systemic ways to excuse and to exonerate 4 misconduct, and that there has been an ongoing lack of 5 accountability for MCSO personnel's misconduct that violated 6 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 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 66 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4646 1 sustained except for Chief Trombi's. The final outcomes in the 2 542 and 543 cases were infected with the consideration of 3 improper influence, and symptomatic of larger problems with 4 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 7 policy violations, even though the supervision failures 8 encompassed periods when he was assigned to other divisions. 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 67 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4647 volume of civilian complaints, and we saw the results. Others were culpable but were not disciplined. 2 While 3 Lieutenant Sousa was in command of HSU, Trombi received -- 4 reviewed only two recordings of Armendariz's traffic stops 5 despite knowing -- THE COURT: 6 MS. WANG: 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 68 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4648 1 Deputy Armendariz in terms of an IA referral, because most IA 2 investigations lead to unfounded findings. 3 testimony at page 78. 4 received no training on when to refer an employee to Internal 5 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 8 Charley Armendariz over numerous IA cases during his tenure, 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 69 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4649 1 violations of the command responsibility, policies, in this 2 circumstance, based on an excuse that he was busy with other 3 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 6 around the MCSO rumor mill that no one was held responsible for 7 violations of this Court's preliminary injunction. 8 Sousa's testimony at 2693. 9 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 11:04:45 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 70 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4650 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, 4 I would note that it is impossible for plaintiffs to ascertain 5 whether we had complete IA files or whether we had final files 6 because documents were produced piecemeal, with mentions of the 7 same IA number across different discontiguous Bates ranges. 8 There were duplicate files, there were partially overlapping 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 71 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4651 I'd note also that other items were also allegedly 1 2 taken for training purposes, including laptops. There was one 3 day, according to Exhibit 169, and as noted in Bailey's 4 testimony at 3230, that two HSU personnel took out two laptop 5 computers under the diversion program, allegedly for training. 6 Yet even now, the PSB investigations appear to accept 7 as a given the proposition that IDs and other property, 8 including religious items, things that Chief Deputy Sheridan 9 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 11:07:57 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 72 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4652 1 Armendariz. Now, that case started out as the death 2 investigation of Armendariz. 3 Armendariz's wrongdoing over a course of his career at MCSO, 4 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 7 property or evidence that they could not tie to a deputy other 8 than Armendariz into an IA case, and that's Sheridan's 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 73 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4653 1 Cisco Perez's allegations of pocketing by HSU. It is clear 2 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, 5 and went so far as to say that they felt sorry for the suspects 6 in that criminal IA case. Sheridan decided to initiate the criminal case rather 7 8 than an administrative case. 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 74 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4654 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 4 cross-examination by Mr. Masterson, trying to explain himself. 5 When asked whether the initiation of the criminal case -- and 6 I'd note, Your Honor, that when I asked him whether the 7 initiation of the criminal case would potentially interfere 8 with the ability to bring an administrative case, the chief 9 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 11:12:31 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 75 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 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 4 activities other than the one that Sergeant Palmer came forward 5 with to demonstrate that one television set had been obtained 6 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 76 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4656 1 you're right. 2 closeout memo, I think you're right is not quite accurate. THE COURT: 3 MS. WANG: 4 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: 7 That's right, Your Honor. And was 8 addressed to Chief Deputy Sheridan, skipping two links, at 9 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 That's at page 2815. 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 77 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4657 1 of a few of the IDs that were handed to him, and he did not 2 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 5 to attempt to reach the owners of IDs who were not local to the 6 Maricopa County area because they had been deported. 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 78 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4658 through the Internal Affairs system. Tennyson testified that Cisco Perez was the only 2 3 person who accused HSU of thefts. 4 that's at 2905. 5 allegations were the only indication of theft that he knew of. 6 But then he acknowledged under questioning that there were many 7 other indications of possible thefts by HSU personnel. 8 this is at 3200 to 3203. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 79 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4659 There was an allegation by Amber Marie Murphy that 1 2 Armendariz stole $300 from her during a traffic stop. 3 case at all was initiated based on that complaint by a 4 civilian. 5 for Sousa's policy violation. 6 receive a finding of sustained on that count, but it was 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 80 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 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, 4 and does not check on any cases except to run reports on how 5 long the investigations have been pending. 6 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. 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 81 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4661 supervisors and commanders. There's no uniformity or accountability for 2 3 division-side IA investigations. And even in cases involving 4 major discipline, which are ostensibly reviewed by PSB, the 5 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 8 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 82 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 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 4 commander from covering up policy violations in his or her 5 division by interfering with a division-side internal 6 investigation if no one brings it up to PSB's attention. 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 83 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4663 1 internal complainants be given a Garrity warning. Bailey 2 admits that this could cause intimidation of the complainant, 3 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 6 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 84 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4664 1 or insulting language under category II of the discipline 2 matrix rather than discrimination under category VI. 3 Olson defended that categorization decision at 3588, and the 4 principal, Sergeant Lawhorn, got only a written reprimand. 5 minimum for category VI, which would have been the appropriate 6 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 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 85 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4665 should have been, at page 1529. Among Armendariz spin-off cases, Your Honor, repeated 2 3 Miranda violations were not taken seriously. 4 shows eight IA cases categorized by MCSO and the spreadsheet as 5 involving Miranda violations. 6 finding, and that deputy received only coaching as discipline. 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 86 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4666 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, 4 based on the video review, found that there was no probable 5 cause to justify detention of more than an hour pending a K-9 6 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 9 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 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 87 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4667 1 the engine, I guess, that kind of drove HSU, kept everything in 2 order, and you did a hell of a job. "Answer: 3 "Question: 4 5 I should have interviewed you last 'cause all this stuff may not have even been necessary. "Answer: 6 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 88 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 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 4 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 7 give you the record cites, Your Honor, because I don't have 8 time. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 89 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4669 There were rampant problems, Your Honor, with the 1 2 predetermination hearing and name clearing system. 3 I'd ask permission, since we're going to be addressing Your 4 Honor's questions about the exhibits on Internal Affairs, to 5 submit that in writing over the next two weeks. 6 Montoya was never disciplined, and we do plan to address Your 7 Honor's question in writing. 8 there's limited time and we need time for Mr. Killebrew. THE COURT: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 90 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4670 1 who was charged with falsifying a tip to MCSO's immigration 2 hotline and was referred for investigation by an MCAO 3 prosecutor had nothing to worry about in a pending IA case 4 because the 120-day clock was about to run out. 5 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 8 PSB, even though he knew Bailey was the current commander over 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 91 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4671 1 Sergeant Knapp had 1459 IDs that he claimed he was using for 2 training purposes, and had attempted to put them in the 3 destruction bin at the Property and Evidence Unit, Sheridan and 4 Bailey both testified they were well aware that the monitor 5 would be interested in knowing about those IDs, they were well 6 aware that the Court had issued a discovery order on February 7 12th of 2015 regarding such documents, and that they had an 8 independent duty of candor to the monitor, and that disputes 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 92 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4672 1 that IDs did not fall within the four corners of the Court's 2 February 12th, 2015 order. 3 regardless of the order requiring production to the plaintiffs, 4 Sheridan and Bailey knew there was an independent obligation of 5 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 8 way it was phrased. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 93 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4673 In the meantime, Your Honor, he had already told the 1 2 monitor, as he acknowledged during his testimony, that the 3 investigation had always been open. 4 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 7 disclosure of those identifications. 8 reason that Sheridan and Bailey could not simply have told the 9 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 11:43:08 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 94 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4674 1 17. And it is undisputed that about 500 of the IDs belonged to 2 members of the plaintiff class, and that Sheridan knew the fact 3 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 6 to address defendants' apparent reliance on the advice of 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 95 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4675 Even after the July 20th meeting, Your Honor, Chief 1 2 Sheridan testified that Ms. Iafrate had not done the legal 3 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: 6 No, Your Honor. The reason -- the factual 7 findings that we would submit are justified by the record are 8 that Chief Sheridan formulated a theory as to why he could 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 96 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4676 1 suggests that the testimony is simply not credible. 2 inconsistent testimony between Sheridan, Bailey, and Seagraves 3 about the facts. 4 meeting, later that week of the monitor site visit, Bailey 5 approached him and told him he was concerned because it had 6 come to light through Lieutenant Swingle's statements to the 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 97 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 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 4 the four corners of the Court's orders, is simply not credible. 5 They knew that the monitor wanted to know about IDs, and they 6 answered a question about the IDs "no" when they knew that was 7 false. 8 that Bailey's response was not accurate. And Lieutenant Seagraves acknowledged that, testifying That's at page 2171. 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 98 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4678 1 whistle-blower, a Latino deputy, to be the one responsible for 2 addressing racial profiling by his fellow deputies, implying 3 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 6 injunctive relief and other remedies to reform this very 7 serious and complete lack of internal accountability in the 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 99 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4679 MR. YOUNG: 1 All right. Well, if Your Honor will 2 permit me, I'll be brief. 3 Mr. Sands this morning, which I'm going to move to strike, 4 actually, since it is not authorized. 5 evidence that Mr. Sands says is relevant to this issue. 6 think that defeats the prejudice element of the laches defense 7 by itself. It's chock full of I 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 100 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 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. 5 the testimony with respect to Mr. Casey's October 18, 2012 6 letter establishes unclean hands. 7 discussed it, that they thought that argument would not 8 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 TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 101 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4681 1 and we spent a lot of time on this -- knowledge of the order. 2 Notice of the order. 3 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 6 order that issued in 2011 on December 23rd, that was never at 7 issue in the trial in 2012, so there's no merger, there's no 8 res judicata, for that reason and for the other reasons that 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 102 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4682 stricken, we would ask for leave to respond to it. THE COURT: 2 Well, I'm tempted to strike it. 3 to hear from Chief Sands' attorney first. 4 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 Thank you, Your Honor. THE COURT: 9 If I don't strike MR. YOUNG: MR. KILLEBREW: 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 103 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4683 1 make sure that we are correct, and that if changes are 2 necessary, changes be made. 3 any changes, to submit those changes on the same deadline I've 4 given you for everything else, which is two weeks from today. 5 We'll hear you after lunch, Mr. Killebrew. 6 26 minutes. You'll get Thank you, Your Honor. (Lunch taken.) 8 THE COURT: 9 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: 7 And I'm going to ask, if you have We have privacy act concerns that prevent us from 13:04:55 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 104 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4684 in the possession of the Sheriff's Office. THE COURT: 2 No, thanks. All I'm really looking for 3 with my questions is evidence that's been admitted in this 4 lawsuit. MR. KILLEBREW: 5 THE COURT: 6 I see. 13:05:08 If it hasn't been admitted, then I think 7 that I would be willing to consider stipulations, but it's only 8 if everybody stipulates to it. MR. KILLEBREW: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 105 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4685 We would direct the Court to Arizona Revised Statutes, 1 2 Section 38-1110. 3 being 120 days and 180 days because the statute has actually 4 been amended. 5 actually 38-1105, set the time limit at 120 business days. 6 current version of the statute, which I think only become 7 effective this year, is 180 calendar days. 8 math on those, those are pretty similar amounts of time, but 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 106 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4686 1 day, this Court issued docket entry 795. And in that order, on 2 page 17, the Court said that when it was making assessments -- 3 meaning the monitor's assessments of Internal Affairs 4 investigations -- cases like the present one -- meaning the IA 5 cases we've heard about in this contempt proceeding -- which 6 provide the MCSO with both significant allegations of 7 departmental misconduct and significant motivation to obfuscate 8 the truth, to avoid embarrassment, public exposure, should the 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 107 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4687 1 findings of fact and conclusions of law after the trial in this 2 case, the United States filed a statement of interest. 3 actually the next docket entry on the docket. 4 statement of interest we invited the Court to consider consent 5 decrees that the United States had entered in others cases as 6 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 9 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. Thank you, Your Honor. 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 108 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4688 1 violations by a law enforcement agency, and in nearly all of 2 them there were failures of internal accountability. 3 go hand in hand. The two Contemporary law enforcement typically views 4 5 accountability in a law enforcement agency as having four 6 components -- there's policy, training, supervision, and 7 discipline -- and the consent decrees in our cases typically 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 109 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4689 1 carry out competent investigations because it has a certain 2 view about how those should come out, but the remedies may be 3 distinct. 4 investigations are thorough; other remedies to ensure that 5 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 8 these sorts of problems, and that's what I want to discuss, but 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 110 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4690 MR. KILLEBREW: 1 I'm not sure that all of those 2 protections for -- due process protections for the defendants 3 are necessary in this case, but it does make sense to me that 4 if the defense wants to have an expert as well, that that's 5 only fair, and I would be -- we would be willing to work on a 6 compressed time line to do that. THE COURT: 7 9 All right. MR. KILLEBREW: 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 111 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4691 In addition, there should obviously be rules that 1 2 anyone who is involved in investigating an allegation of 3 misconduct should not have had any -- or reviewing an 4 investigation of an allegation of misconduct, should not have 5 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 112 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4692 1 responsibility of the Internal Affairs Division. I suppose I 2 could require that if he is -- if he does not implement a 3 remedy that's acceptable either to the monitor or a civilian 4 employee that the matter is raised to the Court for decision as 5 long as it involves a member of the plaintiff class. 13:16:10 Is that what you're saying? 6 MR. KILLEBREW: 7 That would be one possibility. 8 Transparency would be promoted if those decisions were in 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 113 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4693 investigation and publish reports. THE COURT: 2 And so they can publish reports. MR. KILLEBREW: 3 THE COURT: 4 It's transparency. All right. What does that do for members 5 of the plaintiff class who may be suffering because of 6 nonresponsiveness in the police agency that's ongoing that 7 affects or involves their rights? 8 MR. KILLEBREW: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 114 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4694 1 decrees, they may be interesting and informative, but I'm 2 really going to have to have -- I'm really going to have to 3 base anything I do in the constitutional authority that I have 4 to protect the rights of the members of the plaintiffs' class, 5 correct? 13:18:49 MR. KILLEBREW: 6 Well, let me just -- there is a -- a 7 consent decree can go beyond what a judge could rule at the 8 close of trial, and that's established in Local 95 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 115 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4695 1 you have an accountability system that has a single point of 2 failure, which I believe that the Maricopa County Sheriff's 3 Office system does have that, that's sort of asking for 4 trouble. 5 there are other actors who have overlapping responsibilities, 6 you have additional opportunities for issues to come to light, 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 116 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4696 1 to the investigator for a determination of how that new 2 evidence fits into all the other facts. THE COURT: 3 Let me ask you this: If I determine that 4 the investigations that have already taken place are 5 constitutionally inadequate, what should I do? MR. KILLEBREW: 6 13:21:53 I think that's the -- that is a tough 7 question. 8 And especially if it was constitutional violations, they should 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 117 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4697 minutes. You're getting close. MR. KILLEBREW: 5 THE COURT: 6 I will close. There's a number of provisions in 8 those about the thoroughness investigation -- of investigations 9 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: 7 Okay. You have five 13:24:05 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 118 of 240 Argument - Killebrew, 11/20/15 Evidentiary Hearing 4698 1 comes after them, whether it be this Court, the monitor, the 2 plaintiff class, the plaintiff-intervenors. 3 wrong call is made in an Internal Affairs investigation, it 4 actually changes the standards for that agency, because now a 5 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. 8 which items may be pocketed from civilians, in which money may 9 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 1 time? OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 119 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4699 MR. MASTERSON: 2 Well, I've spoken with Mr. Walker and 3 Mr. Murdy, and I am informed that they will require 4 approximately a half hour each. THE COURT: 5 Okay. 6 keeping track of time. 7 it, I'll give it to you. If they've got time left and you want MR. MASTERSON: 9 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? 8 11 If you want to cede them time, I'm Mr. Killebrew, representing the What both 13:27:21 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 120 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4700 1 counsel failed to mention was that the United States 2 Government, through ICE, during its 287(g) training of MCSO 3 deputies, trained MCSO deputies to use race as a factor in 4 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 7 occasion did use race as a factor in enforcing federal 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 121 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4701 MR. MASTERSON: 1 So I think it's important to note -- 2 we've had all sorts of discussions about state of mind and 3 intent. 4 with someone or some organization who intentionally set out to 5 violate the United States Constitution; we're not here with 6 someone or an organization that set out to racial profile. 7 Rather, we're here with an organization which reasonably relied 8 upon training provided by the United States Government. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 122 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4702 Sheriff Arpaio's the head of MCSO. 1 The Court's recognized that. He's the chief 2 policy maker. The Court's 3 recognized that he has final decision-making authority over all 4 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 7 reasonable steps were taken to ensure that MCSO complied with 8 this Court's preliminary injunction. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 123 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4703 So the sheriff accepts the responsibility for the 1 2 violation that did occur of the Court's preliminary injunction. 3 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 6 injunction, rather than defy this Court's preliminary 7 injunction, MCSO was trying to comply with the Court's 8 preliminary injunction. 9 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 preliminary injunction. 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 124 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 3 know what he meant to say. 4 this letter, and apparently in the first contact he had, or 5 first communication he had with MCSO after the December 23, 6 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 9 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 13:37:01 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 125 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4705 1 quotes from Exhibit 187 the language that Tim Casey provided 2 that "The Court is enjoining the MCSO 'from detaining any 3 person based solely on knowledge, without more, that the person 4 is in the country without unlawful authority.'" Again, a mistake, but I'm not really harping on that 5 6 mistake. 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 126 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4706 1 argument on the preliminary injunction order. 2 me, as I go back and look and recall, that the substance of the 3 argument -- And did you have a chance to review that? 4 MR. MASTERSON: 5 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 127 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4707 1 someone was in the country without authorization? 2 really what was at issue in the preliminary injunction. 3 a foregone conclusion that there was no authority for the MCSO 4 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: 7 THE COURT: 8 I do. -- what I'm saying? MR. MASTERSON: 9 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 13:41:50 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 128 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4708 And so we might talk a lot about the constitution -- 1 2 the separate constitutional violations that occurred here in 3 different -- you know, was somebody who was eventually charged 4 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 7 matter of policy, after -- it appears, perhaps -- consultation 8 with Sheriff Arpaio, that they got no authority to detain 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 129 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4709 1 by the sheriff where he may say: 2 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' 5 is," but -- THE COURT: 6 Doesn't it sound a little bit like -- MR. MASTERSON: 7 THE COURT: 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 130 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 3 you have reviewed the scenarios listed below. 4 copy you on all these emails so attorney client privilege ..." 5 et cetera, et cetera -- "... until we get a final training 6 product out to the troops." I am going to Again, this is lieutenant's effort. 7 13:45:22 Lieutenant 8 Sousa's goal here is to get training -- and in fact, 9 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. I 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 131 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 5 doubt, that Sheriff Arpaio may not be entitled to, in light of 6 what we have from testimony from Chief Sands, from Chief 7 MacIntyre, from Casey himself, about the extent to which they 8 discussed the scope and the meaning of the orders with Sheriff 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 132 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4712 correct e-mail, was of, like, June, wasn't it? MR. MASTERSON: 2 THE COURT: 3 Yes, sir. And then it's the following October when 4 we have all the allegations that the preliminary injunction's 5 being violated, and apparently Chief Sands acknowledges that 6 they're being violated, and so he calls Lieutenant Sousa and he 7 says: 8 Lieutenant Sousa sends the same summary you just showed me from 9 187 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 133 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4713 1 Sergeant Palmer and forwarded by Lieutenant Sousa, and 2 unfortunately, things come to an end there. 3 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: 6 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 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 134 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4714 1 Court's order to the extent that they're just holding people 2 without probable cause even of a state crime, right, or of 3 sufficient suspicion. 4 some point, under the Constitution they don't have the right to 5 hold them for any time if they don't have reasonable suspicion 6 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. 9 11 Even if they end up charging them at And again, Sheriff 13:52:43 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 135 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 4 point, and I'm not going to rehash that because he clearly has 5 accepted the responsibility, and so has the sheriff. 6 stops there. The buck We've heard the phrase "The buck stops here." 7 8 Truman, I think, had it on his desk. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 136 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4716 1 even note a couple, they appear to be italicized, maybe, I'm 2 not sure, but -- THE COURT: 3 Those are Casey's if they are. MR. MASTERSON: 4 THE COURT: 5 Okay. MR. MASTERSON: 6 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 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 137 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4717 1 is in the country," assuming that's supposed to be "without" 2 lawful authority. THE COURT: 3 What do I do about Casey's testimony that 4 within a week or two after the order was entered, he developed 5 the rubric that he used to discuss with Maricopa County "arrest 6 or release"? MR. MASTERSON: 7 Well, I think you refer to 8 Lieutenant Sousa, who sat right up there and told you rather 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 138 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4718 1 said it was his understanding then that as long as they called 2 ICE during the initial stop, it became ICE's arrest and not 3 their arrest, and they could hold them for as long as they 4 wanted. Well, I don't believe that, and I don't believe it for 5 6 a couple of reasons. 7 which was revoked. 8 of Jakowinicz, Trowbridge, and Palmer, who all tell me that is 9 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 1 think a valid inference that this Court could draw. Exhibit 2512, that's Mr. Segura's letter. 2 THE COURT: 3 October letter? MR. MASTERSON: 4 THE COURT: 5 6 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 139 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4719 later. October 11, 2012. Yeah, thanks. MR. MASTERSON: 7 Of October -- October 11, 2012. So we're talking 10 months And in that letter Mr. Segura outlines 8 three alleged violations of this Court's preliminary 9 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: 1 MS. McGEE: 2 Did I give some signal? Hold on. MR. MASTERSON: 3 4 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 140 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4720 I'm on 2514. Which page? That's a good question. The first page of the letter. (Pause in proceedings.) 5 MR. MASTERSON: 6 14:00:49 The first paragraph of the letter 7 discusses the accusation, which we've now agreed on was true, 8 that my -- it accuses my clients of apparent violations of the 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 141 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4721 1 deliver these suspects to U.S. Border Patrol at a specified 2 meeting pointed. 3 Court's December 23, 2011 injunction." 4 5 THE COURT: MR. MASTERSON: 7 THE COURT: 8 10 Well, we agree that there is still a violation of the injunction, correct? 6 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 142 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 3 not told "arrest or release." 4 THE COURT: MR. MASTERSON: 5 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 143 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4723 1 leap to suspect that he relayed or communicated that 2 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. 5 perhaps there's a timing issue about when he had discussions 6 with Lieutenant Sousa, but had he communicated arrest or 7 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. I 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 144 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4724 1 injunction, 2533 says the very next day Mr. Casey's consulting 2 with Lieutenant Sousa about those questions, or it seems to say 3 those questions. 4 Lieutenant Sousa about the questions, Lieutenant Sousa's very 5 aware of the difference between federal immigration law and 6 state criminal charges. MR. MASTERSON: 8 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? 7 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 145 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4725 1 in favor of Sergeant Palmer. 2 favor of Chief MacIntyre, I'm not sure it militates in favor of 3 Chief Sands, I'm not sure it militates in favor of Chief Deputy 4 Sheridan, and I'm not sure it militates in favor of Sheriff 5 Arpaio, to the extent that they were all advising each other: 6 You can't do this. 7 Unless you're going to contest that testimony, and I want to 8 listen if you are. And they were. MR. MASTERSON: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 146 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4726 Well, I guess you apply your standard here, clear and convincing. THE COURT: 3 Okay. MR. MASTERSON: 4 And I think the clear-and-convincing 5 standard doesn't let you get near intentional action here. 6 I think it's certainly reasonable that there were 7 miscommunications made to Sheriff Arpaio, Chief Sheridan, and 8 others as to what could lawfully be done under this court 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 147 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4727 1 testimony, that seems to be confirmed by at least some of the 2 documentary evidence, that Sheriff Arpaio told him: 3 have to change our method of operation at all because we're not 4 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? 7 I thought that was valuable, I thought it was a good idea, but 8 I didn't think it was an immediate necessity, because I'd been 9 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 14:11:58 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 148 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 3 that -- I mean, again, it's only inferential, like all of this 4 is, and I agree that I think I can draw the inferences you've 5 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 8 there was no real effect on MCSO operations due to the 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 149 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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. 4 would have violated the injunction, but I think it would make 5 your point stronger -- do you have any evidence in the record 6 that they received such direction? MR. MASTERSON: 7 8 It still To my knowledge, there's no such evidence in the record. THE COURT: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 150 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4730 Is there any evidence that suggests that Lieutenant Sousa has misstated the facts in those letters? MR. MASTERSON: 3 THE COURT: 4 None. Do you concede that the facts as stated by 5 Lieutenant Sousa as to HSU, its operation, Sheriff Arpaio and 6 Chief Sands' interest in HSU, are correctly stated in those 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 151 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4731 MR. MASTERSON: 1 "By order of Sheriff Arpaio, effective 2 immediately, no MCSO personnel shall detain any person for 3 turnover to ICE unless probable cause to arrest or detain 4 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 7 just ICE, but the bottom line here, Judge, is if the 8 communication was arrest or release, this is it right here, and 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 152 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 3 issue. THE COURT: 4 Let me ask you this: As it relates to 5 this issue, can I consider the credibility of Chief Deputy 6 Sheridan and Sheriff Arpaio as it relates to other matters that 7 we've discussed? 8 misstated the facts under oath, can I use that in determining 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 153 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4733 1 with what he did? 2 he provided any guidance of any kind to Lieutenant Sousa other 3 than: Don't violate the injunction. Is there any other testimony than that? 4 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: 7 And he was aware of the training. But if 8 he says that he doesn't disagree with the testimony of Casey, 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 154 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4734 those two days correct, accurate, to the best of -THE COURT: 2 You didn't object, though, did you? MR. MASTERSON: 3 THE COURT: 4 Just because you object to most questions? MR. MASTERSON: 5 THE COURT: 6 Just because I object a lot. I may have waived an appeal right on 8 that particular question, but I don't think I waived and I 9 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: 7 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 1 go. OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 155 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4735 I'll let you go. I'll let you speak some. MR. MASTERSON: 2 Thank you. I think the evidence is pretty clear that Chief 3 4 MacIntyre really didn't have anything to do with the 5 preliminary injunction. THE COURT: 6 I mean, Tim Casey -- No, I think that's wrong. 14:23:07 I think the 7 testimony is extremely clear that Chief MacIntyre was involved 8 in this up to his eyeballs early on. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 156 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4736 1 made. 2 when we were talking about whether or not Chief MacIntyre's 3 inclusion on these letters constituted a waiver. 4 she made that. 5 instances in which he was involved, and it was her duty to do 6 it, but the great weight of the evidence is he was involved, 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 157 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4737 THE COURT: 1 What do I then do with Sheriff Arpaio's 2 deposition testimony that he delegated to Chief Deputy Sheridan 3 and to Chief Sands the responsibility to comply with the 4 preliminary injunction? 5 MR. MASTERSON: Well, I think one thing you do is 6 recognize that Chief Sheridan stepped up and said: 7 accepting responsibility for that. 8 was my responsibility. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 158 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4738 1 discovery that should have been provided that wasn't, and some 2 of which has now been destroyed? 3 MR. MASTERSON: THE COURT: 4 6 anyway. THE COURT: 7 THE COURT: 9 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: 8 No. Okay. MR. MASTERSON: 5 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 159 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4739 THE COURT: 1 Except, for example, Sergeant Anglin said 2 that Sheriff Arpaio kept inquiring for as long as he was 3 involved in the investigation. MR. MASTERSON: 4 5 given by Mr. Montgomery? THE COURT: 6 Well, you know, was that information Well, let's first -- I'll tell you what. I mean, the truth is 7 I think there may be -- this may help your argument, but I'll 8 tell you what my impression is after listening to all that 9 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 1 it. OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 160 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 4 misrepresented or haven't been more fully forthcoming, but now, 5 when I say to Sheriff Arpaio, Are you aware of anybody that's 6 investigated me or my activities? and he says no, and then he 7 gets back up on the stand and acknowledges that he was aware, 8 at least that Mr. Montgomery was doing it, and even with 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 161 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4741 1 story changed over time -- and certainly Chief Deputy 2 Sheridan's story changed over time, it seems to me -- there's 3 substantial doubt about -- the substantial question is whether 4 these gentlemen are telling the truth or are they trying to 5 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 8 things that really relate to -- and the 50 hard drives is a 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 162 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4742 1 weren't representing -- 2 MR. MASTERSON: 3 probably sitting back there somewhere. THE COURT: 4 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 163 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4743 THE COURT: 1 Well, let's just cut right to it. The 2 sheriff said that he received -- his testimony was that he'd 3 received that schematic; he'd received the time lines; that he 4 was aware that Montgomery was doing those things. 5 certainly disputed testimony about whether or not he wanted to 6 further investigate that. 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 164 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4744 MR. MASTERSON: 1 Was anybody providing you any 2 information about me that led you to believe that I was 3 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 6 actively doing, and the sheriff was not doing that. 7 MCSO was actively investigating you. THE COURT: 8 No one at We had a guy, and -- Well, certainly -- well, go ahead. MR. MASTERSON: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 165 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4745 1 county, and just ignore that. 2 THE COURT: Should Sheriff Arpaio have gone to the 3 United States Attorney instead of the Arizona Attorney General 4 if he wanted immunity from prosecution for Mr. Montgomery? MR. MASTERSON: 5 THE COURT: 6 I'm sorry, I missed the question. Sheriff Arpaio went to the Arizona 7 Attorney General to assist in obtaining some sort of immunity. 8 Should he also have gone to the United States Attorney and then 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 166 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4746 1 the -- I mean, there's other reasons he might have wanted not 2 to be truthful, too. 3 respect to him, and I agree that anybody can be -- he was the 4 victim of a pretty significant fraud. 5 come forward with that. 6 wanted to come forward is not just his own embarrassment, but 7 the fact that his own attorney was representing Mr. Montgomery 8 and talking to him throughout all of this with respect to at 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 167 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4747 the plaintiffs' class in this case? MR. MASTERSON: 2 THE COURT: 3 I'm not following that question. Okay. If Sheriff Arpaio doesn't want to 4 come forward and acknowledge information that is embarrassing 5 to him because it makes him look bad, doesn't it make him look 6 bad if the MC -- if Internal Affairs investigations into the 7 MCSO reveal flaws in his operations, including his own 8 decisions; including the decisions of his chief deputy; 9 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 1 pretty affiliated with Maricopa County Sheriff's Office? MR. MASTERSON: 2 3 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 168 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4748 I think he's very affiliated, but everybody makes mistakes. THE COURT: 4 And part of running a Sheriff's Office 5 like that has to be -- it's true. 6 true. 7 be a willingness to fully, completely, and independently 8 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: 9 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 I Do I need expert testimony to tell me that if Sheriff DS 20 14:43:11 14:43:28 14:43:48 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 169 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4749 1 discredited by the evidence, why do I need expert testimony to 2 tell me that is an inadequate investigative process? MR. MASTERSON: 3 I don't think on that narrow issue you 4 do. But if Ms. Wang is the expert, or even the Court -- and 5 again, I'm not trying to disparage the Court, but -THE COURT: 6 8 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: 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 170 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4750 He said: 1 I didn't think this needed to be 2 investigated. 3 So when Tennyson goes in there and he asks leading questions 4 that says this doesn't need to be investigated, it doesn't take 5 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 1 if I do -- invalidate those investigations? MR. MASTERSON: 2 3 THE COURT: For what? MR. MASTERSON: 5 Well, here's why, is because you -- THE COURT: I'm just talking about the specific rights of the folks involved. MR. MASTERSON: 9 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. 4 6 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 171 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4751 THE COURT: 14:47:06 The Well, he's Oh, I think sometimes he clearly did that. 14:47:24 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 172 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4752 MR. MASTERSON: 1 Maybe, but you know what's really 2 something that's very important to making that assumption is: 3 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 6 this, and Deputy -- 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 173 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4753 something that each interviewer -THE COURT: 2 Well, you can rest assured that whatever I 3 do, I'm never going to say: 4 inappropriate. I'm not going to say that. MR. MASTERSON: 5 Leading questions are always Okay. I guess to cut this short, and 6 I'm going to have to cut it quite short, Judge, I think you can 7 make certain narrow determinations without expert testimony, 8 but for any more sweeping decisions with respect to IA 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 174 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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: 4 THE COURT: 5 Just a second. MR. MASTERSON: 6 That would be helpful. Go ahead. I'm listening. We discussed briefly the discovery 7 obligations, and I'm not disputing that there were problems 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 175 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4755 1 been destroyed; audio recordings have been destroyed; driver's 2 licenses and identifications have been destroyed. Am I wrong about any of that? 3 MR. MASTERSON: 4 5 of that. 14:51:54 THE COURT: 6 I don't think you're wrong about any What do I do about the ability to draw 7 adverse inferences? I mean, I think there's two things at play 8 here. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 176 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4756 destructions? MR. MASTERSON: 3 Well, here's my general answer to 4 that. I think you're permitted to draw adverse inferences. 5 But at the same time, I think there has to be other and 6 corroborating evidence for the inferences you seek to draw. THE COURT: 7 Well, let me tell you one I'm thinking 8 about so you can address it. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 177 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4757 1 just never sent up the line. And then with Chief Trombi, when 2 he was a captain, he didn't send complaints up the line because 3 he thought he should just deal with them in the division, so 4 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 7 reformation in complaint processing and internal investigation 8 from those kinds of things? I mean, I'm not sure that I need that. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 178 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4758 Do you contest that? 1 MR. MASTERSON: 2 THE COURT: 3 I do not. Okay. And so the -- for example, the 1 to 4 12 ratio that I implemented without, you know, at the very 5 start of this case, before we had any of these other issues and 6 before we needed to implement IAPro, is just not sufficient. Do you acknowledge that? 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 179 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4759 1 Lieutenant Sousa said and I think what Captain Skinner said, 2 that some of the other remedies that we've implemented, and 3 maybe just standard operating procedure anyway, means that 4 sergeants are not having enough time to adequately supervise 5 their patrol members, and that's what I'm asking you. MR. MASTERSON: 6 Now -- okay. I think that's a valid 7 point, but as Sergeant Skinner -- excuse me, Captain Skinner 8 told you, it may depend on where exactly in MCSO you're talking 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 180 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4760 MR. MASTERSON: 1 THE COURT: 2 And I do -- okay. MR. MASTERSON: 3 You do. I'm just going to hit one more area, 4 and I'm going to hit it quickly, because it's very concerning 5 to me, and I think it's very concerning to the Court, and 6 that's the 1459 IDs and the statement made by Captain Bailey. THE COURT: 7 That concerns me. MR. MASTERSON: 8 THE COURT: 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 181 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4761 That's uncontroverted. THE COURT: 2 Now -- Well, it is also uncontroverted that he 3 never did any training. 4 MR. MASTERSON: That's true. And did he need 1459? 5 Probably not. 6 they were -- they were taken from Property correctly. 7 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 15:01:30 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 182 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4762 THE COURT: 1 That's true. Except for, if we want to 2 play that game, you still have to disclose those to the 3 monitor, because they are in the custody of the MCSO, and there 4 are a great deal -- number of them, and your client was quite 5 aware that it was an issue about which this Court was very 6 concerned. MR. MASTERSON: 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 183 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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 5 good advice. 6 these IDs subject to the Court's order? 7 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 15:04:04 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 184 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4764 1 never going to determine that, unless their existence was 2 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 5 Armendariz IDs, to determine whether or not they were seized, 6 and that troubles me. 7 the idea that -- I don't think it's contested -- that 8 Armendariz' violations of policy were all combined as to be 9 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 I 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 185 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4765 1 Hispanic surnames, and I realize that's not a perfect 2 indicator; and I'm concerned that the items found in 3 Armendariz's home were found after he'd been an HSU officer, 4 and after there was testimony that Rafaelita Montoya dumped 5 things -- or arranged for him to take things from HSU offices 6 to his home. 7 that a very likely source for those identifications was HSU 8 operations, which include -- included street patrols. 9 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: 1 2 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 186 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4766 Yeah, but interestingly enough, they never investigated the identifications in Armendariz. MR. MASTERSON: 3 Well, the point is, Judge, that's his 4 concern is: Are we going to get the monitors all fired up over 5 nothing? 6 determine whether we go down that path. Let me get some advice from counsel to THE COURT: 7 Wasn't that interesting that he said he 8 himself was upset? 9 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: 1 2 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 187 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4767 words. It depends upon what the question was. THE COURT: 3 Well, here we're back to parsing I don't think so, because -- even as 4 plaintiff suggests, even if my February order was not 5 applicable, my December order -- or my November 20th order, as 6 altered in December, is applicable, that requires the monitor 7 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 I You can't say that an 15:09:40 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 188 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4768 1 IA number exists? 2 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: 5 We did. And so it may be that they didn't 6 ever even ask it in terms of an IA number. 7 they did, the IA number existed at that time, and 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 189 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4769 MR. MASTERSON: 1 All I can attribute that to is faulty 2 recollection at the time. 3 court all day on that day? THE COURT: 4 I don't even remember: Were we in Oh, it -- no, but we were in court at the 5 end of the day because of the monitor's summary. 6 for about 45 minutes, and the monitor said: 7 concerns. 8 entered my order and you went over. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 190 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4770 1 leadership, they have to lead by example. And they have to 2 accept responsibility when they need to accept responsibility. And here they have done that, Judge. 3 Both Chief 4 Sheridan and Sheriff Arpaio have told you that they accept the 5 responsibility for certain and specific violations of this 6 Court's orders, including the preliminary injunction. 7 think to lead by example they do accept that responsibility 8 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 15:14:39 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 191 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4771 back at 3:30. (Recess taken.) 2 THE COURT: 3 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 8 during the course of the questioning you asked him: What 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 192 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4772 1 send it to Lieutenant Sousa, so the person involved at HSU that 2 had responsibility would have your order immediately. Mr. Casey testified at page 1640: 3 "... he" -- again 4 meaning Sands -- "recognized the urgency on it, and it was 5 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 8 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 15:40:08 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 193 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4773 MR. MURDY: 1 I'll address it, Your Honor. As the evidence shows, the exhibits, the e-mail 2 3 transmittals in December, January, February, and March, 4 starting with December 2011, Lieutenant Sousa directed 5 Sergeant Palmer to prepare scenarios, training scenarios, and 6 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 194 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4774 1 even before the preliminary injunction entered, that the MCSO 2 could not detain people and turn them over to ICE. 3 have anything -- and, I mean, I think that seems to be 4 consistent with the memorandum filed by Mr. Casey even prior to 5 the preliminary injunction motion that he filed after multiple 6 conferences with Chief Sands. 7 MR. MURDY: It doesn't I looked at the memorandum yesterday, Your 8 Honor, and I don't know that it necessarily goes as far as you 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 195 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4775 1 January, February, and March, Chief Sands is out of the loop at 2 that point in time. 3 that he doesn't know what's going on, but he's not on the 4 e-mails that are going back and forth. THE COURT: 5 I don't want to say out of the loop in Well, I guess I get that, but if it was 6 and if in fact training had already been provided to HSU about 7 the Arizona case, then isn't this just sort of supplemental 8 training to the same effect? 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 196 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4776 occurred. 2 3 THE COURT: Okay. MR. MURDY: So clearly there's some misunderstanding 4 or misinterpretation of the Court's order in that 5 January-February-March time frame, and Chief Sands is not on 6 the e-mails after the first e-mail where Casey sends out the 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 197 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4777 1 violate the order; never directed them not to comply with the 2 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 5 sheriff with regard to the LEAR policy is still in effect. 6 That brings up an issue to Mr. Casey's attention with regard 7 to: 8 and Chief Sands communicate with the deputies that were 9 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. I 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 198 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4778 MR. MURDY: 1 It's my understanding that Chief Sands did 2 not have a recollection of that meeting, which, you know, is 3 not -- I think it's common human experience, you know, involved 4 with spouses, significant others, and family members, depending 5 upon what side of the equation you're on, that you can have 6 conversations that you flat-out don't recall. THE COURT: 7 8 That's a pretty significant conversation, though, isn't it? MR. MURDY: 9 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 1 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 199 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4779 that. Thank you for correcting me on 15:48:22 MR. MURDY: 6 Okay. I think this e-mail is consistent with the 7 time frame with the Segura letter; Mr. Casey's letter back to 8 Mr. Segura; Mr. Casey's testimony that they met with the 9 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: I Any reason why I should let you file that 15:49:38 1 pleading? 2 3 4 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 200 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4780 MR. MURDY: Pardon me? THE COURT: Any reason why I should let you file that pleading and not strike it. MR. MURDY: 5 Yes, there is. I will be happy to address 6 it. I'd like to address it formally in writing. 7 know, we've had 1599-plus documents filed in this case. 8 filed this pleading this morning as sort of the bench 9 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: Thank you, Your Honor. 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 201 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4781 1 that under the circumstances, quote, "it would not be equitable 2 to hold" -- and they identified the person by name, but it was 3 Sea Shepherd's Administrative Director -- "in contempt," close 4 quote, as she, quote, "could only comply with the injunction by 5 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 8 to hold Chief Sands in contempt for failure to provide the 9 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. 3 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 202 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4782 MR. MURDY: That violates the Court's order, Your THE COURT: So are you telling me that the reason that 4 I shouldn't hold Chief Sands in contempt is because that was 5 the policy of Maricopa County Sheriff's Office and he knew it? MR. MURDY: 6 There's certainly evidence to indicate 7 that there was a misunderstanding as to the scope of your 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 203 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4783 1 with the injunction. 2 it. MR. MURDY: 3 He knew. He knew you couldn't be doing Well, when it came out during the course 4 of the trial that they were still conducting the Lear policy, 5 it became evident, as I understand the testimony, to Mr. Casey 6 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 204 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4784 1 This went for months. 2 there's evidence that nobody told Sousa that his understanding 3 of the policy was wrong, even though at some point you gotta 4 realize that it's wrong if you've been told what Casey says he 5 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 205 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4785 1 Maricopa County Sheriff's Office, there's no civil course of 2 sanction that can be implied and we're looking potentially only 3 at a compensatory -- 4 5 6 7 Right. MR. MURDY: -- damage award. THE COURT: But that still would justify a civil 9 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? 8 10 THE COURT: Thank you. 15:57:05 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 206 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4786 1 ties back into our motion for summary judgment, in the summer 2 of 2012, on July 24th when the sheriff testified, the 3 plaintiffs became aware that this LEAR policy was still in 4 effect. 5 Mr. Casey complaining of the violations. 6 recitation of the evidence today concerning the sheriff's 7 statements in the summer of 2012 with regard to he's going to 8 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 207 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 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: 3 Well, it certainly could, Your Honor. But 4 the fact of the matter is Mr. Segura put in writing he thought 5 that there were violations. 6 plaintiffs and the plaintiffs class knew or should have known 7 of the potential violations, and they should have taken action. 8 They'd been involved in this litigation for years. THE COURT: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 208 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4788 1 this regard is the fact that when the plaintiffs stood or sat 2 on their claim for over two years, if they would have brought 3 the issue to the forefront in the fall of 2012, something could 4 have been done, and additional plaintiffs or plaintiff class 5 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 8 LEAR policy from Sheriff Arpaio's testimony. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 209 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4789 1 Tim Casey send the e-mail to Lieutenant Sousa; directing that 2 these training scenarios be developed; addressing the issue in 3 the fall of October 2012. 4 violated this order of his -- any of his own accord, so I think 5 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 8 the training developed; he's relieved by your order; he doesn't 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 210 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4790 1 Mr. Casey fully explained to him the arrest or release 2 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: 9 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 211 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 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 4 Sheridan were there, and they discussed the nature and needs of 5 the injunction. 6 if I'm wrong, but my recollection is that's right after the 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 212 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 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 4 they weren't going do it, and if they had done it, it was a 5 mistake. 16:05:52 THE COURT: And then for the next eight months they 7 continued to do it. And they did it in an organization that 8 Chief Sands supervised, was in the direct line of supervision. 6 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 213 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4793 1 2 3 THE COURT: Yeah. MR. MURDY: So Jakowinicz knew about the order and had been told by Chief Sands: THE COURT: 4 Read it and study it. Isn't it interesting, then, that in 5 October Chief Sands goes back to Lieutenant Sousa and he tells 6 Lieutenant Sousa -- who is no longer, and has not been for 7 months, in charge of the HSU -- he asked Lieutenant Sousa to 8 summarize and promulgate the order. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 214 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4794 1 know, I think you -- the testimony from Chief Sands and from 2 Lieutenant Sousa is Lieutenant Sousa's a self-starter; he's a 3 goal-oriented individual; that he likes to complete tasks that 4 are assigned to him, especially when they're given to him by a 5 superior; he doesn't go back to the superior unless absolutely 6 necessary; and if there had been a problem, he would have gone 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 215 of 240 Argument - Murdy, 11/20/15 Evidentiary Hearing 4795 received it from Casey, to Sousa, to Palmer, to Trowbridge. MR. MURDY: 2 I don't have any e-mail evidence that I 3 can point to that says Chief Sands conveyed an e-mail to those 4 individuals in that regard. THE COURT: 5 And the only testimony that I have that I 6 can remember -- and I'm inviting you, please, don't let me 7 misstate the evidence -- the only testimony I have that I can 8 remember is Lieutenant Sousa's testimony that when he was sent 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 216 of 240 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, 5 leaving Mr. Walker 20. 6 that's okay with your allocation. 7 promise I'll shut up and let you finish whatever you have to 8 say. MR. MURDY: 9 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 Thank you, Your Honor. 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 Thank you, Your Honor. 18 20 "I And the last paragraph, or the last sentence of that 15 16:12:21 They were inadvertently omitted. 16:13:36 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 217 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4797 Plaintiffs and plaintiff intervenor have stipulated 1 2 that we can submit these to the Court, but they have declined 3 to stipulate to the fact that they are evidence that the 4 invoices were actually paid, and have asked that we see if we 5 can find some documentation that confirms that the payment was 6 made. THE COURT: 7 If you do that and you want to submit a 8 supplemental stipulation that all parties are agreed to, I'm 9 open to that. MR. WALKER: 10 11 Thank you, Your Honor. 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 218 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4798 1 the jural entity that has to be sued. I am aware of nothing 2 that suggests the Board of Supervisors or any other County 3 administrative officer was involved in any of the contempt -- 4 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 7 we're here, nor does it have any relevance to why you're here. 8 Because I do recognize that you're here because you are the 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 219 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4799 1 employees of -- or members of the Board of Supervisors or 2 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 5 States Supreme Court precedent, no basis on which liability for 6 any contemptuous conduct could be imputed to the County. THE COURT: 7 I'm not sure that that squares with what 8 the Ninth Circuit has ordered, that Maricopa County has to be 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 220 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4800 MR. WALKER: 1 I am telling you that, Your Honor, but as 2 I indicated when we spoke about this last week, the County 3 views itself as being obligated, pursuant to Arizona statutes, 4 to provide funding for such purposes, and we continue in our 5 discussions with plaintiffs' counsel about a victims 6 compensation fund. 7 going to be able to present to the Court reasonably soon a 8 proposal on that, and so there's -- the distinction is between 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 221 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4801 THE COURT: 1 Tell me how the County is not liable if 2 it's the jural entity that has to be sued when Maricopa County 3 Sheriff's Office is sued. MR. WALKER: 4 Well, first of all, Your Honor, I 5 think -- and we've covered this ground a little bit 6 previously -- you and I have a little different perspective on 7 what the meaning of the Ninth Circuit's decision is. 8 the Ninth Circuit -THE COURT: 9 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 16:21:31 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 222 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4802 1 sheriff, is a jural entity and is subject to suit and has the 2 right to sue and -- 3 THE COURT: 4 And the Ninth Circuit did say that's not right, didn't they? MR. WALKER: 5 THE COURT: 6 I'm sorry? 16:21:43 They said I could sue the sheriff in his 7 official capacity, which would be the same thing as suing 8 Maricopa County. MR. WALKER: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 223 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4803 1 be liable to set up an independent overseer board over the 2 Sheriff's Office, that that might be an appropriate remedy 3 here. 4 a solution? Are you saying you're not a party to have me order such MR. WALKER: 5 I would put it this way, Your Honor: I 6 don't believe, under Arizona law, the County has the authority 7 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 1 which the Sheriff's Office engages, is that -MR. WALKER: 2 3 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 224 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4804 Honor. THE COURT: 4 MR. WALKER: 5 THE COURT: 6 I would put it a little differently, Your Well -- By Arizona statute -- 16:23:53 Well, Arizona statute does not -- I mean, 7 I don't want to say it doesn't concern me, but I'm not sure 8 that Arizona statutes trumps the constitutional rights of the 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 225 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4805 1 behalf of the County exists here as well. 2 authority of sheriffs are granted by state law under both 3 Arizona and Alabama statutes and constitutional provisions. THE COURT: 4 And those are the Well, I mean, I think to the extent that 5 you're going to start to argue that there's -- the sheriff did 6 something here that the County disapproves of, I don't think 7 I'm going to allow you to argue that at this point. 8 some future date, but I'm not going to -- I'm not going to 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 226 of 240 Argument - Walker, 11/20/15 Evidentiary Hearing 4806 1 that it's irrelevant to me. 2 money that the County spends. 3 question of allocation for the County Board of Supervisors? 4 They can determine how much to fund Sheriff Arpaio, and how 5 much to fund the MCSO, and how to allocate County resources? MR. WALKER: 6 It's not irrelevant, the amount of But really, isn't that a Actually, Your Honor, the Board of 7 Supervisors' discretion with respect to the sheriff's budget, 8 not just in this county but statewide, is fairly 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 227 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 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, 3 and whether it's fair and equitable for that -- the burden to 4 fall to them for the conduct of specific individuals in this 5 instance. 16:28:36 THE COURT: 6 Well, we can discuss that if it becomes 7 relevant at a future date, but I appreciate your highlighting 8 your concern in that respect. 9 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 Thank you, Your Honor. Yes. -- to get that in? You may. 16:29:54 You may. Thank you, Your Honor. 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 228 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4808 1 was dissatisfied, in fact, that -- the allegation being that 2 the MCSO, that specifically Chief Sheridan disregarded this 3 Court's order with respect to gathering of the audio/video 4 recordings, and disregarded the Court's instruction to work 5 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 8 language utilized by the Court during the hearing. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 229 of 240 Argument - Masterson, 11/20/15 Evidentiary Hearing 4809 Then you say, quote: 1 "[D]o your best, and I mean your 2 level best, come up with a plan, review it with the monitor if 3 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. 6 think, certainly, one interpretation is that the Court's 7 saying: 8 get the monitor's approval, and you develop a low-key, quiet 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 230 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4810 THE COURT: 1 My concern is both his subsequent 2 testimony he gave to the monitors and his direction in the 3 first place to suspend, and the conversation that he testified 4 to -- and I'll review that carefully -- the conversation he 5 testified to that he testified he had with Bailey before the 6 monitor's visit. 7 sure I accept, but even if I accept -- and I appreciate the 8 good faith of your argument as to the February order -- I have 9 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 16:34:39 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 231 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4811 With respect to Lieutenant Sousa, he did not take all 1 2 reasonable steps. 3 did not communicate, even with the people who work under him, 4 anything about the injunction. 5 MCSO didn't take that basic step of communicating it to 6 everyone; he didn't take that basic step with communicating it 7 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 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 232 of 240 Argument - Young, 11/20/15 Evidentiary Hearing 4812 faith argument because it wasn't definitive. But he says, at line 20 and 21: 2 Whether it would ever 3 prevail was what I told my client what I thought the odds of 4 were. 5 letter, the argument in this letter likely does not set forth a 6 winning argument. 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 233 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4813 1 the applicable contempt statute under the criminal laws is 2 18 U.S.C. 401, and to that statute there's a five-year 3 statutory limitation period set forth in 18 U.S.C. 3282. 4 And I'll yield the rest of my time to Ms. Wang. 5 6 THE COURT: Ms. Wang. MR. YOUNG: Our time. MS. WANG: 7 16:38:26 Thank you, Your Honor. First in response 8 to Mr. Masterson on what the Court's order was on May 14, 2014, 9 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 That's at page 1349. 16:39:22 And he also acknowledged 16:39:44 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 234 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4814 On the advice of counsel issue, Your Honor, our 1 2 position is that first, it was not reasonable for counsel to 3 direct Bailey as she did; second, it also was not reasonable 4 for defendants to rely on that direction, for two reasons, Your 5 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 8 have given a full accounting of all relevant facts to counsel. 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 235 of 240 Argument - Wang, 11/20/15 Evidentiary Hearing 4815 There is no -- there is a regular practice that 1 2 written explanations are not given for decisions in the 3 grievance or predetermination hearing. 4 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 7 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 236 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4816 1 all deadlines of two weeks from today to submit written 2 submissions. 3 nobody's going to be through fairly or easy, but nobody wants 4 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. 7 my findings out as soon as possible, and then I'll schedule 8 another hearing in which parties can discuss remedies if any 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 237 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4817 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 3 Mr. McDonald and Mr. Stein, you get one shot. MR. EISENBERG: 4 Oh, I'll take one shot, Your Honor, 5 but I'll wait for the Court to make its findings of fact. 6 I assume that, from what you just said, that will come before 7 the two-week period in which we have -- or in which -THE COURT: 8 Oh, no. MR. EISENBERG: 9 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 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 238 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4818 1 today from the arguments of counsel, but that was -- that was 2 what that was for. Does that clarify matters for you at all? 3 MR. EISENBERG: 4 I guess the bottom line, then, for 5 myself, is that at some point in time, the Court will issue its 6 findings of fact with respect to civil contempt. THE COURT: 7 9 That's correct. MR. EISENBERG: 8 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. 16:46:44 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 239 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4819 THE COURT: 1 MR. WALKER: 2 THE COURT: 3 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.) 7 21 It's A.R.S. Section 11-444A. Thanksgiving. 6 20 Go ahead. I'll see you when I see you. 4 5 All right. 16:47:04 1 OF TH EF OG BO W .CO M Case 2:07-cv-02513-GMS Document 1583 Filed 11/23/15 Page 240 of 240 Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 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 9 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