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John T. Masterson, Bar #007447Joseph J. Popolizio, Bar #017434Justin M. Ackerman, Bar #030726Jacob L. Speckhard, Bar #032442JONES, SKELTON & HOCHULI, P.L.C.2901 North Central Avenue, Suite 800Phoenix, Arizona 85012Telephone: (602) 263-1700Fax: (602) 200-7846
jmasterson@jshfirm.com jpopolizio@jshfirm.com jackerman@jshfirm.com jspeckhard@jshfirm.com
Attorneys for Defendant Joseph M. Arpaio inhis official capacity as Sheriff of MaricopaCounty, AZ
UNITED STATES DISTRICT COURTDISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres, et al.,
Plaintiff,
v.
Joseph M. Arpaio, et al.,
Defendant.
NO. CV 07-02513-PHX-GMS
DEFENDANT ARPAIO’SRESPONSE TO COURT’SNOVEMBER 18, 2015 ORDER
(Assigned to Hon. G. Murray Snow)
Defendant Arpaio responds to the Court’s November 18, 2015 Order as
follows:
I. DEFENDANT ARPAIO’S GENERAL OBJECTIONS TO THE COURT’SNOVEMBER 18, 2015 ORDER.
For the foregoing reasons, Defendant Arpaio1
generally objects to the
Court’s November 18, 2015 Order requesting Defendant Arpaio identify and produce
additional information after the close of evidence in this case. In addition, while
Defendant Arpaio outlines his various general objections in Section I below, when
answering the Court’s individual questions in Section II, he will also raise any applicable
1 Reference to Defendant Arpaio incorporates reference to putative civilcontemnors Chief Deputy Gerard Sheridan, John MacIntyre, and Lt. Joseph Sousa.
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specific objections to the Court’s inquiries.
A. Neither the Court Nor Any Other Party Should be Permitted to Reopenthe Evidentiary Record After the Close of Evidence.
“[O]nce the record is closed, a district court, absent waiver or consent,
ordinarily may not receive additional factual information of a kind not susceptible to
judicial notice unless it fully reopens the record and animates the panoply of evidentiary
rules and procedural safeguards customarily available to litigants.” Lussier v. Runyon, 50
F.3d 1103, 1105-06 (1st Cir. 1995); see also id. at 1113 (“It is a fundamental principle of
our jurisprudence that a factfinder may not consider extra-record evidence concerning
disputed adjudicative facts.”); Mercexchange, L.L.C. v. eBay, Inc., 467 F. Supp. 2d 608
617 (E.D. Va. 2006).
In Lussier , the district court was “[d]issatisfied with the trial evidence”
regarding the plaintiff's future disability benefits, so the court, in an effort to accurately
calculate plaintiff's damages, ordered the parties to file a status report concerning certain
disability payments that plaintiff would receive in the future. Id . at 1113. Plaintiff
“though objecting vigorously to the directive,” submitted some evidence relating to his
interim disability payments, whereas the defendant offered no information. Id
Subsequently, the court, apparently exasperated with defendant's failure to submit
requested information, used the plaintiff's forced submission to calculate the present value
of plaintiff's future disability benefits, reduced plaintiff's damages based on such
calculation, and “paid lip service” to the fact that it had “reopened the record.” Id. at
1113, 1115 n. 16. On appeal, the First Circuit concluded that although the district court
claimed to have reopened the record, its actions failed to approach the proper method of
reopening the record because the court, “over the plaintiff's objection, engaged in a
unilateral pursuit of additional evidence without affording the parties the standard
prophylaxis that generally obtains at trial ... [including] the right to object to evidence, the
right to question its source, relevance, and reliability, the right to cross-examine its
proponent, and the right to impeach or contradict it.” Id.
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The same can be said of the Court’s questions contained in this Order. It
cannot be understated that this action was vigorously litigated by Plaintiffs’ counsel. Not
only was an international law firm representing Plaintiffs (Covington & Burling), but the
American Civil Liberties Union (“ACLU”) and the United States Department of Justice
were also involved in this action. Accordingly, after 20 days of trial, over 4500 pages of
trial transcript, and 331 exhibits (two of which were by the Court), the record should be
closed and not subject to further additions based on the inquiry from this Court. As the
court noted in Lussier , if the Court seeks to solicit and admit further evidence, then
Defendants should be afforded all the rights that exist at trial, including the right to object
to evidence, question its source, relevance, and reliability, the right to cross-examine its
proponent, and the right to impeach or contradict it. Moreover, it is axiomatic that these
protections should extend to, and become even more heightened, during civil contempt
proceedings that carry potential criminal consequences.
Accordingly, on these grounds, Defendant Arpaio objects to the Court’s
consideration of any evidence and information provided by any party in response to this
Courts November 18, 2015 Order as a basis for this Courts’ determination of contempt.
B. Requiring Defendant Arpaio to Respond to the Majority of the Court’sQuestions in its Order May Violate Defendant Arpaio’s Due ProcessRights.
A Court must provide an alleged contemnor with notice and an opportunity
to be heard. Bagwell , 512 U.S. at 827; id. at 833 (“[F]urther procedural protections are
afforded for contempts occurring out of court, where the considerations justifying
expedited procedures do not pertain.”). The concept of notice includes prior disclosure
and provision of documents to be used at trial, and prior identification of areas of
examination. See generally, Stuart v. United States, 813 F.2d 243, 251 (9th Cir.1987)
rev'd on other grounds, 489 U.S. 353 (1989); DP Aviation v. Smiths Indus. Aerospace &
Def. Sys. Ltd ., 268 F.3d 829, 846-47 (9th Cir. 2001). Such advance notice is consistent
with an alleged contemnor’s right to present a defense. See United States v. Powers, 629
F.2d 619, 625 (9th Cir. 1980). Further, the law requires progressively greater procedura
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protections for indirect contempts of complex injunctions that necessitate more elaborate
and in-depth fact finding, as in this case. Bagwell , 512 U.S. 821 at 833-34. As such, for a
discrete category of indirect contempts involving “out-of-court disobedience to complex
injunctions,” “civil procedural protections may be insufficient”, and “criminal procedural
protections[,] such as the rights to counsel and proof beyond a reasonable doubt[,] are
both necessary and appropriate to protect the due process rights of the parties and prevent
the arbitrary exercise of judicial power.” Id. at 834.
Here, requesting additional identification of exhibits and answers to this
Court’s questions fails to adequately provide Defendant Arpaio with sufficient notice and
opportunity to be heard regarding his objections to the admissibility of such information.
Specifically, the Court’s Order requests a blanket waiver of objection to any inquiry and
reliance by the Court on various identified and unidentified evidence and information that
may or may not have been a part of the presentation of evidence during the contemp
proceedings. [See e.g., Questions 2, 4, 5 (a), (b), 6, 7(b), 8, 10(b), (d), 12, 13 (a), (b).]
Moreover, the Court’s Order does not appear to provide sufficient and adequate
opportunity for Defendant Arpaio to respond to any submission of information and
evidence that Plaintiffs intend to file in response to the Court’s Order, which would
ordinarily be available if such questions and evidence were being presented during trial.
Accordingly, on these grounds Defendant Arpaio objects to any additional statements
information, or evidence identified or submitted in response to this Court’s Order.
C. Neither Defendant Arpaio Nor Any Other Putative Civil ContemnorCarries the Burden of Persuasion in a Civil Contempt ProceedingInvolving a Complex Injunctive Order.
The burden of persuasion for civil or criminal contempt remains on the
moving party to persuade the court that the defendant has failed to comply with a valid
court order. F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). Moreover
in a civil contempt proceeding, the contempt must generally be proved by clear and
convincing evidence. Matter of Battaglia, 653 F.2d 419, 422 (9th Cir. 1981). However
“criminal procedural protections[,] such as the rights to counsel and proof beyond a
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reasonable doubt[,] are both necessary and appropriate to protect the due process rights of
the parties and prevent the arbitrary exercise of judicial power” when indirect contempt of
court, such as the alleged contempt in this action, involves “out-of-court disobedience to
complex injunctions.” Int’l Union, United Mine Workers of America v. Bagwell , 512 U.S
821, 834 (1994).
This Court’s Order appears to impermissibly request that Defendant Arpaio
identify or produce information, testimony and exhibits that appears to support a finding
that Defendant Arpaio violated the Courts’ Orders beyond a reasonable doubt. This
impermissibly shifts the burden of persuasion for a civil contempt proceeding involving a
complex injunction. As such, Defendant Arpaio generally objects to the Court’s questions
and requests that relate to the production or description of evidence and information that
was not developed or introduced during trial.
II. DEFENDANT ARPAIO’S OBJECTIONS AND LIMITED RESPONSES TOTHE QUESTIONS AND REQUESTS CONTAINED IN THE COURT’SNOVEMBER 18, 2015 ORDER.
Without waiving the general objections stated in Section I above,
Defendant Arpaio responds to the Court’s Questions as follows:
1. To the extent that the parties wish to argue more than they already have
done regarding Chief Sands pending Motion for Summary Judgment, (Doc. 1214) they
should make such arguments within the time allotted to the sides for oral argument on
November 20, 2015.
Defendant Arpaio responds to Question 1 only to note that he filed a
Joinder in Chief Sands pending Motion for Summary Judgment. ( See Doc. 1569).
2. As the Court has already indicated, it feels free to consider the matters set forth in the docket and the representations made by the parties and their representatives
to the Court during the status conferences and in the papers filed in this matter. It also
feels free to rely on its previous findings of fact and conclusions of law. If any party
objects to the Court doing so please state such objections and the basis therefore.
Pursuant to the legal authorities stated in Section I above, Defendant
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Arpaio Objects to the Court’s requests in Question 2. Defendant Arpaio has not
been sufficiently apprised, under the statements contained in Question 2, what
“matters” in the docket and “representations made by the parties and their
representatives to the Court” that the Court intends to rely on and objects on that
basis. In addition, to the extent the Court intends to use any of these “matters” and
“representations” as a basis for finding civil contempt, Due Process requires that
Defendant Arpaio be entitled to advance notice and opportunity to be heard on the
Court’s basis to use these matters. Moreover, reliance on prior representations
made by the parties and their representatives would be patently unfair because any
matter previously argued, represented, or admitted was not subject to the specia
interests and considerations involved in a civil contempt hearing that carries
potential criminal consequences.
3. In so doing, it occurs to the Court that some matters may still be under seal
for which there is no longer a continuing justification. It sets forth the proceedings or
parts of which that have been sealed below and invites the parties to indicate the ones, as
to which it believes, there may be a continuing basis to keep the matter under seal:
(a) 08-07-14 Doc. 735 Telephonic Conference SEALED
Defendant Arpaio has no objection to unsealing this record.
(b) 10-28-14 Doc. 780 Status Conference V. 2 SEALED
Defendant Arpaio has no objection to unsealing this record.
(c) 04-22-15 Doc. 1021 Evidentiary Hearing Day 2 PORTION SEALED
Defendant Arpaio has no objection to unsealing this record.
(d) 04-24-15 Doc. 1041 Evidentiary Hearing Day 4 PORTION SEALED
Defendant Arpaio has no objection to unsealing this record.
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(e) 10-01-15 Doc. 1456 Evidentiary Hearing Day 9 PORTION SEALED
Defendant Arpaio objects to unsealing the record because it involves a
matter that is still under investigation. A motion to seal is generally governed by the
higher “compelling reasons” standard. Pintos v. Pac. Creditors Ass'n, 605 F.3d 665
678 (9th Cir. 2010). The “party seeking to seal judicial records must show that
‘compelling reasons supported by specific factual findings ... outweigh the general
history of access and the public policies favoring disclosure.’” Id. (quoting Kamakana
v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006)).
The compelling interests that justified taking Lieutenant Seagraves
testimony under seal on October 1, 2015 are still present now because the
investigation discussed during the October 1, 2015 hearing is still ongoing and has
not yet reached a final resolution. Importantly, this Court, by sealing entire
proceedings or portions of proceedings that relate to ongoing investigations against
MCSO officers, has acknowledged that potential interference with ongoing
investigations satisfies the compelling reasons standard. See October 28, 2014 Status
Conference at 95:1-95:9 (“we’re holding this under seal only because they’re ongoinginvestigations, but as soon as those investigations are over we’re lifting the seal.”)
Specifically, regarding Lieutenant Seagraves’ October 1, 2015 testimony, this Court
held that “the nature of the criminal allegations, the initiation of the investigation,
the investigation by Tennyson and Zebro, the interview of McKessy, the adequacy of
the investigation . . . ” were all topics that met the compelling reasons standard and
needed to be held under seal. See October 1, 2015 Evidentiary Hearing at 2113:25-
2114:8, 2175:17-2175 (“[w]e are going to go under seal because I have made a finding
that certain questions are relevant, but also that the compelling interest standard
required by the Ninth Circuit justifies us taking these matters under seal.”). There
has been no material change in circumstance since the October 1, 2015 hearing, and
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as such, it should remain sealed.2
(f) 10-02-15 Doc. 1563 Evidentiary Hearing Day 10 PORTION SEALED
Defendant Arpaio cannot answer whether the Court should unseal theportion of these records because the Court has not released the sealed portion of the
hearing to the parties. As such, Defendant Arpaio asserts that for the reasons stated
in Question 3(e), the record should remain sealed.
(g) 10-08-15 Doc. 1472 Evidentiary Hearing Day 11 PORTION SEALED
Defendant Arpaio cannot answer whether the Court should unseal the
portion of these records because the Court has not released the sealed portion of the
hearing to the parties. As such, Defendant Arpaio asserts that for the reasons stated
in Question 3(e), the record should remain sealed.
4. In light of the fact that some reports have been outstanding for a long time
and the Defendants have not yet, or have only recently submitted final versions, it occurs
to the Court that there may be IA investigations that have been completed and submitted
to the Monitor, or which may yet be completed and submitted to which the court may wish
to refer. It proposes the following procedure: If it desires to review any IA report which
has not been introduced into evidence, it will inform the parties which IA report number
or numbers it is seeking from the Monitor. It will refer to the IA reports only to the extent
that it wishes to ascertain the contents of the MCSO investigations and their findings and
conclusions—which would apparently be matters of public record for closed
investigations. Other than ascertaining the conclusions and the content of the
2Finally, Arizona law provides that “[a]n employer shall not include in … the
personnel file of a law enforcement officer that is available for public inspection andcopying any information about an investigation until the investigation is complete or
the employer has discontinued the investigation.” A.R.S. § 38-1109. Notably, thereare no exceptions to A.R.S. § 38-1109. See United States v. Buckland , 289 F.3d 558564-65 (9th Cir. 2002) (the plain language of the statute is unambiguous and shouldtherefore be regarded as conclusive). As such, the Arizona legislature has made itunequivocally clear that information pertaining to ongoing investigations into lawenforcement officers must remain confidential and outside of public records untilthey are final and complete. Because the MCSO investigation discussed during theOctober 1, 2015 hearing is not complete, this Court should rule consistent with theintent of the Arizona legislature and keep Lieutenant Seagraves’ October 1, 2015testimony regarding the underlying criminal investigation under seal.
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investigation, it will not accept or reject any specific findings of the reports without
consulting with the parties. Further it will have no substantive communications with the
Monitor regarding the Monitor’s opinion concerning the adequacy of any report prepared
by MCSO without providing advanced notice to the parties and an opportunity to be
heard. If any party objects to this procedure, or desires to propose an alternate one--it
needs to raise such objections at oral argument.Pursuant to the legal authorities stated in Section I above, Defendant
Arpaio objects to the Court admitting new evidence into the record as an
impermissible attempt to reopen the evidentiary record after the close of evidence.
Moreover, any attempt by the Court to review new IA reports prior to giving
Defendant Arpaio notice and opportunity to be heard on the admissibility of that
specific IA report is a violation of Defendant Arpaio’s Due Process Rights
Moreover, admitting new evidence after the close of evidence in these proceedings
deprives Defendant Arpaio of his opportunity to contest the validity of the
statements made in the IA report during the traditional confrontational setting of a
trial.
In the event the Court does not sustain Defendant Arpaio’s objection
Defendant Arpaio requests two important distinctions/clarifications be made to the
Court’s proposed procedure to review IA reports not in the record. Prior to the
Court’s review of any IA report which has not been introduced into evidence, the
parties should have notice and opportunity to be heard on whether the IA report at
issue is relevant to the Court’s determination of civil contempt in these proceedings.
After the Court has determined the IA report’s relevance to these proceedings, the
parties should be provided notice and opportunity to be heard to argue the adequacy
of the IA report as it pertains to this Court’s contempt determination. This must
also include the opportunity to depose the Monitor prior to any discussion between
the Monitor and the Court and the right to rebuttal witnesses (including Defendant
Arpaio’s own experts) regarding the accuracy of the Monitor’s opinion on the
accuracy of the IA report.
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5. There has been testimony that during the time that the preliminary
injunction was in effect, HSU roadside interdiction patrols detained and turned over to
ICE 171 persons for whom it had no state charges but whom it suspected of being in the
country without authorization. Although the Court recalls testimony that a similar tally
either existed or could be prepared for HSU’s work place employment raids and/or other
activities, it cannot recall that such a tally was ever subsequently admitted into evidence.The Court also remembers Lieutenant Sousa’s testimony pertaining to overhearing radio
calls from MCSO operations that were not part of HSU, principally District II, pertaining
to the transfer of non-chargeable unauthorized persons to ICE custody.
(a) Please highlight for the Court any other testimony or exhibits tha
demonstrate the numbers of persons that may have been impacted by the MCSO’s
violation of this Court’s preliminary injunction and the different ways in which they may
have been impacted.
Pursuant to the legal authorities stated in Section I above, Defendant
Arpaio objects to the Court’s request that Defendant Arpaio highlight testimony or
exhibits that demonstrate the numbers of persons that may have been impacted by
the MCSO’s violations of this Court’s preliminary injunction and the different ways
in which they may have been impacted. First, it is Plaintiffs’ burden to establish
evidence exists beyond a reasonable doubt that Defendant Arpaio violated this
Court’s Orders. As such, requiring Defendant Arpaio to produce such information
impermissibly shifts the burden of persuasion during these contempt proceedings
Second, to the extent that Plaintiffs attempt to provide additional information
responsive to this question, Defendant Arpaio also objects to the Court’s
consideration of new information and evidence after the close of the record.
(b) To the extent that the identity of such victims, or the extent of the
harm done to them, may or may not be ascertainable please indicate why.
For the same reasons stated in Defendant Arpaio’s response to Question
5(a) above, Defendant Arpaio objects to being required to answer Question 5(b).
Video Recordings
6. The Court is aware from the evidence that the MCSO went through a
process by which it reviewed videotapes that it recovered from the Deputy Armendariz
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investigation or from subsequent developments and inquiries. Chief Deputy Sheridan
testified that this constituted approximately 8900 videos of traffic stops. Hr. Tr. at 934.
The Court assumes that the MCSO reviewed all of the recordings it recovered from all
sources including the Armendariz videotapes, the video recordings subsequently found in
HSU offices, the video recordings it recovered from MCSO deputies and posse members
pursuant to Chief Trombi’s May collection efforts and other sources. If this is not correct, please inform the Court.
Pursuant to the legal authorities stated in Section I above, Defendant
Arpaio objects to the Court’s request that Defendant Arpaio highlight testimony or
exhibits that demonstrate whether video recordings were properly disclosed during
the underlying trial. First, it is Plaintiffs’ burden to establish evidence exists beyond
a reasonable doubt that Defendant Arpaio violated this Court’s Orders. As such
requiring Defendant Arpaio to produce such information impermissibly shifts the
burden of persuasion during these contempt proceedings. In addition, to the extent
that Plaintiffs attempt to provide additional information responsive to this question,
Defendant Arpaio also objects to the Court’s consideration of new information and
evidence after the close of the record. However, pursuant to Defendant Arpaio’s
ongoing obligation to supplement discovery, and without waiving the
aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that MCSO has
reviewed all 8900 videos of traffic stops to the extent the videos could be reviewed.
Counsel is informed that approximately 100 of the 8900 videos were corrupted and
could not be viewed by MCSO staff.
(a) These videotapes which MCSO has apparently reviewed wouldappear to be more extensive than those that were accounted for by Emily Doan that were
provided by the MCSO to Plaintiffs. See, e.g. Ex. 214 (enumerating 456 DVD’s). Please
explain the discrepancy. Were any of the videotapes accounted for by Emily Doan
provided to the parties prior to the underlying trial in this matter?
For the same reasons stated in Defendant Arpaio’s response to Question
6 above, Defendant Arpaio objects to being required to answer Question 6(a)
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However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that Plaintiffs
were provided with traffic stop videos on May 21, 2015 (with IA14-0543 Bate
stamped as MELC211983-MELC211984), June 5, 2015 (131 discs Bate stamped
MELCVID001_00006503-MELCVID001_00006633), and June 8, 2015 (an external
hard drive Bate stamped as MELCVID1_001_00000894-
MELCVID1_001_00006502). On February 2, 2015, Plaintiffs were provided
spreadsheets listing all the retrieved videos (and other information) that PSB
employee Jennifer Johnson created. The traffic stop video spreadsheets list all the
videos that were reviewed by MCSO.
(b) Were any video tape recordings subsequently recovered by MCSO
that were not reviewed pursuant to the MCSO review procedure outlined at trial?
For the same reasons stated in Defendant Arpaio’s response to Question
6 above, Defendant Arpaio objects to being required to answer Question 6(b).
(c) There was testimony by Captain Bailey, among others, that the protocol followed by MCSO reviewers in reviewing the videotapes was turned over to the
Monitor and/or the Plaintiffs. Please identify this protocol if it was admitted into evidence
in this action.
For the same reasons stated in Defendant Arpaio’s response to Question
6 above, Defendant Arpaio objects to being required to answer Question 6(c)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that on May 30
2014, a protocol in the form of a Memorandum was disclosed to Plaintiffs
(MELC004811). However, Counsel for Defendant Arpaio is informed and believes
that this was Memorandum was not admitted into evidence.
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(d) Were Plaintiffs given access to any video recordings that came into
the possession of MCSO that they may have wished to review?
For the same reasons stated in Defendant Arpaio’s response to Question
6 above, Defendant Arpaio objects to being required to answer Question 6(d)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that, as
provided in 6(a) above, Plaintiffs received these videos to review if they so wished
All videos/audio that MCSO retrieved were provided.
(e) The specific self-surrender of video files appears to be the subject of
an Internal Affairs Investigation, see, e.g., Ex. 2943 (IA2014-0253). Is this investigation
closed? Has any final report been issued in this or other investigations that pertains to
MCSO video files? Has such final report been provided to the parties and to the Monitor?
Has such an investigation, or any part of it, been admitted into evidence?
For the same reasons stated in Defendant Arpaio’s response to Question
6 above, Defendant Arpaio objects to being required to answer Question 6(e)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that, pursuant
to the production indices provided by Attorney Iafrate, portions of IA2014-0253
were disclosed on 10/22/14 and 6/22/15, as well as weekly status reports being
provided on the following dates: 9/26/14, 10/3/14, 10/9/14, 10/20/14, 10/24/14, 11/3/14
11/7/14, 11/13/14, 11/21/14, 12/5/14, 12/12/14, 12/19/14, 12/26/14, 12/31/14, 1/9/15,
1/16/15, 1/23/15, 1/30/15, 2/17/15, 2/23/15, 2/27/15, 3/6/15, 3/16/15, 3/23/15, 3/31/15
4/10/15, 4/20/15, 5/4/15, 5/15/15, 5/20/15, 8/19/15, and a bi-weekly status report on
10/5/15. However, a final report has not been issued because this investigation is still
pending.
(f) As the testimony indicated, the review of such files also has resulted
in various other internal affairs investigations, see, e.g., Ex. 2943 Are all such
investigations closed? Are all such investigations whether closed or pending listed on Ex.
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2943? Please identify any matters that have arisen from videotape review and remain
pending. Do all such investigations that are closed contain final reports? Please identify
the matters arising from videotape review that are closed in which a final report either
was or has not yet issued. Please identify the final reports for such matters that have been
admitted into evidence in this matter.
For the same reasons stated in Defendant Arpaio’s response to Question
6 above, Defendant Arpaio objects to being required to answer Question 6(f)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that the status
as stated in Exhibit 2943 is accurate except that IA 2014-0221 is now sustained, and
IA 2015-0780 was added to the list of open investigations as provided in an updated
listing (MELC1404203a-MELC1404207a).
(g) In his April hearing testimony Sheriff Arpaio indicated that he
thought there was an MCSO internal affairs investigation into the MCSO’s failure to
follow the Court’s May 14, 2014 orders, but he did not know the results of tha
investigation. (Tr. 635-36). To the extent that any such investigation ever occurred please
identify it. Identify whether it is opened or closed, whether a final report has ever been
issued, whether the investigation has been provided to the Parties and or the Monitor,
and/or whether it was admitted into evidence in this matter.
For the same reasons stated in Defendant Arpaio’s response to Question
6 above, Defendant Arpaio objects to being required to answer Question 6(g)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that no
investigation was opened on this matter.
Audio Recordings
7. The Court is aware from representations made by MCSO personnel at post-
trial conferences and status hearings and the evidence at the contempt hearing of the
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capacity of MCSO patrol deputies to make audio recordings of their public encounters
during the relevant discovery period in this case.
(a) Please point to any admitted evidence suggesting that any audio
recordings were recovered or reviewed by MCSO or made available to the Plaintiffs,
either prior to trial in this action or thereafter.
Pursuant to the legal authorities stated in Section I above, this Court’s
Order impermissibly requests Defendants to identify testimony that may support a
finding that Defendant Arpaio violated the Courts’ Orders beyond a reasonable
doubt. This impermissibly shifts the burden of persuasion for a civil contempt
proceeding involving a complex injunction. As such, Defendant Arpaio objects to
the Court’s question and its request for Defendant Arpaio to “point to” evidence that
Defendant Arpaio has no burden of proving. However, pursuant to Defendant
Arpaio’s ongoing obligation to supplement discovery, and without waiving the
aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that copies of
the 8900 videos were provided both to the Monitor and Plaintiffs.
(b) The self-surrender of such files appears to be the subject of an Internal Affairs Investigation, see, e.g., Ex. 2943 (IA2014-0253). Is this investigation
closed? Has any final report been issued in this or other investigations that pertains to
MCSO audio files? Has it been provided to the Parties and/or the Monitor. Has it been
admitted into evidence in this action?
For the same reasons stated in Defendant Arpaio’s response to Question
7(a) above, Defendant Arpaio objects to being required to answer Question 7(b)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that IA2014-
0253 is still pending, and a final report has not been issued.
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Reports
8. The Court is aware from representations made by MCSO personnel at post-
trial conferences and status hearings and the hearing evidence that a number of MCSO
reports relevant to the underlying trial were identified and provided after trial.
(a) Have all such reports whenever located been made available and/or
provided to the Plaintiffs for their inspection?
Pursuant to the legal authorities stated in Section I above, Defendant
Arpaio objects to this question. The Court’s inquiry in Question 8(a) is not specific
enough to permit Defendant Arpaio to answer its question because Defendant
Arpaio is unsure to which reports the Court is referring. Under Defendant Arpaio’s
due process rights, he is entitled to advance notice and opportunity to refute any
evidence being offered against him and the Court’s unclear question precludes him
from adequately responding to its inquiry. In addition, it is not Defendant Arpaio’s
burden to prove any alleged contempt, and asking Defendant Arpaio to identify
these reports impermissibly shifts that burden. For these reasons, Defendant Arpaio
objects to Question 8(a).
(b) Are they all accounted for in the testimony of Emily Doan? See, e.g
Ex. 215?
For the reasons stated in Defendant Arpaio’s answer to Question 8(a)
above, Defendant Arpaio objects to this question.
(c) Were any of these reports provided to Emily Doan provided prior to
the trial of this matter?
For the reasons stated in Defendant Arpaio’s answer to Question 8(a)
above, Defendant Arpaio objects to this question.
(d) Items including reports found after trial at Enforcement Support in
November 2014 appear to be the subject of an Internal Affairs Investigation, see, e.g., Ex
2943 (IA2015-0018). Is this investigation closed? Has any final report been issued in this
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or other investigations that pertain to responsive reports found and disclosed after the
trial of this matter? Have such reports been provided to the Parties and/or the Monitor?
Have they been admitted into evidence in this action?
For the same reasons stated in Defendant Arpaio’s response to Question
8(a) above, Defendant Arpaio objects to being required to answer Question 8(d)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that, and
pursuant to Attorney Iafrate’s production index, portions of IA2015-0018 were
disclosed on was 2/25/15, 4/21/15 (criminal), 6/1/15, 6/4/15, 6/30/15 (criminal),
7/30/15, 7/31/15, 8/4/15, 8/5/15, 9/16/15, and 9/21/15. Memoranda regarding the
criminal investigation were admitted into evidence on 10/1/15 as Exhibits 2887 and
2890.
Identifications
9. Throughout the post-trial period a number of identifications of persons,
many of which appear to be identifications of potential members of the Plaintiff class,
have come to light in the custody of the MCSO or its deputies.
(a) There has been testimony that approximately 500 identifications were
found on the property of Deputy Armendariz. Chief Deputy Sheridan testified that, as a
general matter, he does not believe that investigators into the Armendariz matter looked
into how these identifications came into the custody of MCSO deputy sheriffs. Has there
been any contrary testimony or evidence? Has there been any contrary testimony or
evidence as it relates to the identifications that have come forward since that time?
Pursuant to the legal authorities stated in Section I above, Defendant
Arpaio objects to this question. It is not Defendant Arpaio’s burden to prove the
alleged contempt, and asking Defendant Arpaio to identify evidence related to
identifications that came into custody of MCSO as a result of the Armendariz matter
impermissibly shifts that burden. For these reasons, Defendant Arpaio objects to
Question 9(a). However, pursuant to Defendant Arpaio’s ongoing obligation to
supplement discovery, and without waiving the aforementioned objections, he states
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as follows:
Counsel for Defendant Arpaio is informed and believes that, and as
indicated in Armendariz Linked 06-22-15.xlsx (MEL253132), MCSO did in fact
attempt to determine how the subject identifications came into the custody of MCSO
Deputy Sheriffs. This was provided to Plaintiffs on 7/14/15.
(b) Such identifications appear to be the subject or partial subject of a
number of PSB investigations. These include: IA2014-221 (Armendariz is the only
principal), IA2014-0295 (criminal investigation of Cisco Perez allegations), IA2014-0339
(what is 267 found in locker at HSU? Does this refer to Identifications?) IA2014-0541
(does this investigation into property taken from drop houses also include
identifications?),3 IA2014-0579 (Driver’s license), IA2014-587 (Driver’s license),
IA2014- 0588 (Id card), IA2014-0775, IA2014-776, IA2014-777, IA2014-0780, IA2014-
0781, IA2014-782, IA2014-783, IA2014-821, IA2015-0022. Are these investigationsclosed?
For the reasons stated in Defendant Arpaio’s answer to Question 9(a)
above, Defendant Arpaio objects to this question. However, pursuant to Defendant
Arpaio’s ongoing obligation to supplement discovery, and without waiving the
aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that, the above-referenced investigations are now closed. Further, the findings indicated in Exhibit
2943 are accurate with the exception of IA2014-0221, which is now sustained.
Has any final report been issued in these or other investigations that pertain
to identifications found in the custody of MCSO or its deputies or volunteers?
For the reasons stated in Defendant Arpaio’s answer to Question 9(a)
above, Defendant Arpaio objects to this question. However, pursuant to Defendant
Arpaio’s ongoing obligation to supplement discovery, and without waiving the
aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that, final
3Counsel for Defendant Arpaio is informed and believes that IA2014-0541
includes identifications.
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reports have been issued for several of the above-referenced investigations. See also
Defendant Arpaio’s response to the following question for which IA’s have final
reports issued.
Have they been provided to the Parties and/or the Monitor?
For the reasons stated in Defendant Arpaio’s answer to Question 9(a)
above, Defendant Arpaio objects to this question. However, pursuant to Defendant
Arpaio’s ongoing obligation to supplement discovery, and without waiving the
aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that:
IA2014-0221 is now completed and was provided to the
Monitor and the Parties on 11/9/15. Moreover,
according to Attorney Iafrate’s production index,
documents related to the 221 investigation were being
disclosed throughout the last year including weekly
reports and portions of evidence and supplements.
Exhibits 2020, 2055, 2056, 2057, 2058, 2069 admitted
10/14/15 are weekly status reports regarding this
investigation.
IA2014-0295 was admitted into evidence on 10/14/15 as
Exhibits 2020, 2055, 2056, 2057, 2058, and 2069. These
exhibits represent weekly status reports regarding the
investigation.
IA2014-0339 was sent to Monitor on 10/16/15.
IA2014-0541 was sent to the Monitor and Plaintiff’s
Counsel on 9/27/15. Moreover, pursuant to Attorney
Iafrate’s production index this documents related to
IA2014-0541 were disclosed on 6/4/15, 8/12/15, and
9/25/15.
IA2014-0579, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0579
were disclosed on 11/20/14, 2/27/15, 4/24/15, 5/21/15,
5/22/15, and 9/16/15.
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IA2014-0587, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0587
were disclosed on 11/20/14, 2/27/15, 4/24/15, 5/21/15,
5/22/15, and 9/16/15.
IA2014-0588, pursuant to Attorney Iafrate’sproduction index, documents related to IA2014-0588
were disclosed on 11/20/14, 5/15/15, 5/21/15, 5/22/15,
and 9/16/15.
IA2014-0775, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0775
were disclosed on 2/25/15, 7/29/15, and 9/21/15.
IA2014-0776, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0776
were disclosed on 2/25/15, 7/29/15, and 9/21/15.
IA2014-0777, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0777
were disclosed on 2/25/15, 7/29/15, and 9/21/15.
IA2014-0780, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0780
were disclosed on 2/25/15, 7/30/15, 7/31/15, and 9/21/15.
IA2014-0781, pursuant to Attorney Iafrate’sproduction index, documents related to IA2014-0781
were disclosed on 2/25/15, 7/30/15, 7/31/15, and 9/21/15.
IA2014-0782, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0782
were disclosed on 2/25/15, 7/30/15, 7/31/15, and 9/21/15.
IA2014-0783, pursuant to Attorney Iafrate’s
production index, documents related toIA2014-0783
were disclosed on 2/25/15, 7/30/15, and 9/21/15.
IA2014-0821 was sent to the MCSO Court
Implementation Division (as part of PSB’s monthly
production) on 10/16/15.
IA2015-0022, pursuant to Attorney Iafrate’s
production index, documents related to IA2015-0022
were disclosed on 7/30/15, 8/4/15, 8/12/15, 8/26/15,
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9/21/15, 9/25/15, 9/29/15, 9/30/15, and 10/7/15.
Discipline Reversal paperwork was sent, at the
Monitor’s request, to the Monitor and Plaintiff’s
counsel on 9/29/15.
Have they been admitted into evidence in this action?
For the reasons stated in Defendant Arpaio’s answer to Question 9(a)
above, Defendant Arpaio objects to this question. However, pursuant to Defendant
Arpaio’s ongoing obligation to supplement discovery, and without waiving the
aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that:
IA2014-0221 was admitted into evidence on 10/14/15 asExhibits 2020, 2055, 2056, 2057, 2058, and 2069. Theseexhibits represent the weekly status reports regardingthe investigation.
IA2014-0295 was admitted into evidence on 10/14/15 asExhibits 2020, 2055, 2056, 2057, 2058, and 2069. Theseexhibits represent the weekly status reports regardingthe investigation.
Plaintiffs failed to introduce the followinginvestigations into evidence: IA2014-0339, IA2014-
0541, IA2014-0579, IA2014-0587, IA2014-0588, IA2014-0775, IA2014-0776, IA2014-0777, IA2014-0780, IA2014-0781, IA2014-0782, IA2014-0783, IA2014-0821, IA2015-0022.
(c) Were Plaintiffs given access to any such materials that they may have
wished to review?
For the reasons stated in Defendant Arpaio’s answer to Question 9(a)
above, Defendant Arpaio objects to this question. However, pursuant to Defendant
Arpaio’s ongoing obligation to supplement discovery, and without waiving the
aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that to the
extent Plaintiffs timely and reasonably requested access to such materials, Defendant
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Arpaio complied with Plaintiffs’ requests in as timely a manner as possible.
Other Items of Personal Property and/or Tangible Things
10. Throughout the post-trial period a number of items of property or tangible
things including license plates, purses, credit cards, bank cards, debit cards, cell phones,
narcotics, weapons, drugs, and currency that may have come from members of the Plaintiff class have continued to come to the attention of the Defendants.
(a) Such property appears to be the subject or partial subject of a
number of PSB investigations. These include: IA2014-221 (Armendariz is the only
principal), IA2014-0295 (criminal investigation of Cisco Perez allegations), IA2014-0339
(what is 267 found in locker at HSU? Does this refer to property?), IA2014-0541, IA2014-
588 (Navy Credit Union card), IA2014-0780 (photos, docs), IA2014-817 (drugs), IA2015-
0018) (there are two entries for this in Ex. 2943, is there a reason for this? (cash, CDs)4 ,
IA2015-0019 (purse) IA2015-21 (currency), IA2015-22 (2 cd’s 1 notebook).
To the extent Question 10(a) poses a question, Defendant Arpaio objects
on the basis that it is unclear what is being requested, and that responding to any
request may violate Defendant Arpaio’s Due Process Rights, impermissibly shifts the
burden of persuasion and impermissibly calls for admission of evidence after
evidence has closed.
(b) Are these investigations, and any investigations that MCSO intends
to initiate on such property, closed?
For the same reasons stated in Defendant Arpaio’s response to Question
10(a) above, Defendant Arpaio objects to being required to answer Question 10(b)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that, the above-
referenced investigations are now closed. Further, the findings indicated in Exhibit
2943 are accurate with the exception of IA2014-0221, which is now sustained.
4Upon information and belief, and as indicated in Plaintiff’s Exhibit 2943,
CIA2015-0018 signifies a Criminal Internal Investigation, while IA2015-0018 denotesan Administrative Internal Investigation.
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Has any final report been issued in these or other investigations that pertain to property
found in the custody of MCSO or its deputies or volunteers?
For the same reasons stated in Defendant Arpaio’s response to Question
10(a) above, Defendant Arpaio objects to being required to answer Question 10(b)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that fina
reports have been issued for several of the above-referenced investigations. See also
Defendant Arpaio’s response to the following question for which IA’s have final
reports issued.
Have they been provided to the Parties and/or the Monitor?
For the same reasons stated in Defendant Arpaio’s response to Question
10(a) above, Defendant Arpaio objects to being required to answer Question 10(b)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that:
IA2014-0221 is now completed and was provided to the
Monitor and the Parties on 11/9/15. Moreover,
according to Attorney Iafrate’s production index,
documents related to the 221 investigation were being
disclosed throughout the last year including weekly
reports and portions of evidence and supplements.
Exhibits 2020, 2055, 2056, 2057, 2058, 2069 admitted
10/14/15 are weekly status reports regarding this
investigation.
IA2014-0295 was admitted into evidence on 10/14/15 as
Exhibits 2020, 2055, 2056, 2057, 2058, and 2069. These
exhibits represent weekly status reports regarding the
investigation.
IA2014-0339 was sent to Monitor 10/16/15.
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IA2014-0541 was sent to the Monitor and Plaintiff’s
Counsel on 9/27/15. Moreover, pursuant to Attorney
Iafrate’s production index, documents related to
IA2014-0541 were disclosed on 6/4/15, 8/12/15, and
9/25/15.
IA2014-0588, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0588
were disclosed on 11/20/14, 5/15/15, 5/21/15, 5/22/15,
and 9/16/15.
IA2014-0780, pursuant to Attorney Iafrate’s
production index, documents related to IA2014-0780
were disclosed on 2/25/15, 7/30/15, 7/31/15, and 9/21/15.
IA2014-0817, pursuant to Attorney Iafrate’s
production index, documents related to IA 2014-0817were disclosed on 5/15/15, 5/21/15, 5/22/15, and 9/16/15.
IA2015-0018, pursuant to Attorney Iafrate’sproduction index, documents related to IA 2015-0018were disclosed on 2/25/15, 4/21/15 (criminal), 6/1/15,6/4/15, 6/30/15 (criminal), 7/30/15, 7/31/15, 8/4/15,8/5/15, 9/16/15, and 9/21/15. Memoranda regarding thecriminal investigation were admitted into evidence on10/1/15 as Exhibits 2887 and 2890.
IA2015-0019, pursuant to Attorney Iafrate’sproduction index, documents related to IA2015-0019
were listed as disclosed on 7/30/15, 7/31/15, and 9/21/15.
IA2015-0021 – Exhibit 2010 admitted 10/14/15 containsthe “Background Packet” for this investigation.Attorney Iafrate’s production index documents relatedtoIA2015-0021 were disclosed on 5/26/15, 7/30/15,8/4/15, 9/21/15, 9/24/15, and 10/1/15.
IA2015-0022, pursuant to Attorney Iafrate’sproduction index, documents related to IA2015-0022were disclosed on 7/30/15, 8/4/15, 8/12/15, 8/26/15,9/21/15, 9/25/15, 9/29/15, 9/30/15, and 10/7/15.Discipline Reversal paperwork was sent, at theMonitor’s request, to the Monitor and Plaintiff’scounsel on 9/29/15.
Have they been admitted into evidence in this action?
For the same reasons stated in Defendant Arpaio’s response to Question
10(a) above, Defendant Arpaio objects to being required to answer Question 10(b)
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10(a) above, Defendant Arpaio objects to being required to answer Question 10(d)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that MCSO has
initiated PSB investigations with Officer Raphaelita Montoya as the principal under
IA-2014-0541 and IA2015-0021. IA2014-0541 was initiated on September 12, 2014
IA2015-0021 was initiated on January 9, 2015. IA2014-0541 was provided to the
Monitor and Plaintiff’s Counsel on September 27, 2015 and IA2015-0021 was
provided to the Monitor and Plaintiff’s Counsel on October 8, 2015.
11. This Court has already ruled that it could draw negative factual inferences
from the destruction of evidence resulting from the failure of Defendants to comply eitherwith the original preservation letters sent by Plaintiff to the MCSO on or about July 21,
2008. Plaintiffs followed up the preservation letter with broad interrogatories and
document production requests seeking any documents or tangible things referencing
MCSO traffic stops, created during MCSO traffic stops, resulting from MCSO traffic
stops or guiding an officer’s discretion during MCSO traffic stops. Examples of the
relevant discovery requests are cited in the Order to Show Cause. (Doc. 880 at 18-20). To
the extent that Plaintiffs assert that this Court is entitled to draw negative factual
inferences for destroyed documents it should state why. To the extent that the Defendant
contests otherwise, it should similarly so state. Similarly to the extent that the parties
believe the Court does not have the power to fashion a remedy based on the materialswithheld before trial they should so state.
Defendant Arpaio objects to any attempt by this Court to draw negative
factual inferences for destroyed documents that relate to July 21, 2008 production
requests.
First, any attempt to draw negative factual inferences for the destroyed
documents is barred by the Merger doctrine. The Merger doctrine, a subset of res
judicata, “bars litigation of all matters which could have been raised in support of a
cause of action previously litigated.” Sidney v. Zah, 718 F.2d 1453, 1458 (9th Cir
1983); Restatement (Second) Judgments § 18 (1982); see also Owens v. Kaiser Found.
Health Plan Inc., 244 F.3d 708, 713 (9th Cir. 2001) (For res judicata to apply, there
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must be “(1) an identity of claims, (2) a final judgment on the merits, and (3) identity
or privity between parties.”). The scope of “the claim extinguished includes al
rights of the plaintiff to remedies against the defendant with respect to all or any
part of the transaction, or series of connected transactions, out of which the action
arose.” Restatement (Second) Judgments § 24(1) (adopted in Western Sys. v. Ulloa
958 F.2d 864, 871 (9th Cir. 1992)).
Here, there is an identity of claims involving a final judgment on the
merits because this is a continuation of the same matter, involving the same parties,
regarding whether Defendant Arpaio’s has complied with the Court’s prior
injunctive Orders. As such, under the Merger doctrine, the Court’s final judgment
on the merits (issued on October 2, 2013), extinguished all rights of the Plaintiffs to
remedies against Defendant Arpaio with respect to all or any part of the transaction
or series of connected transactions, out of which Plaintiffs’ actions arose, including
issues involving whether documents should have been produced subject to the
Plaintiffs’ July 21, 2008 discovery requests.
Moreover, by waiting over five years to raise the issue of production of
MCSO traffic stops, including video documentation of those stops, both the Court
and Plaintiffs are depriving MCSO of the ability to take corrective action. This is
important because civil contempt, as opposed to criminal contempt, is “wholly
remedial.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992). In
addition, Defendant Arpaio and the other purported civil contemnors inability to
reduce or avoid any potential sanctions through compliance may also impact the
discussion of whether any sanctions deemed necessary are criminal or civil. See
Bagwell , 512 U.S. at 828-29 (quoting Penfield Co. of Cal. v. SEC , 330 U.S. 585, 590
(1947)) (“[A] ‘flat, unconditional fine’ totaling even as little as $50 announced after a
finding of contempt is criminal if the contemnor has no subsequent opportunity to
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reduce or avoid the fine through compliance.”).5
As such, Defendant Arpaio objects
to any desire by the Court to draw a negative factual inference for destroyed
documents that relate to Plaintiff’s July 21, 2008 production requests.
Finally, for the same reasons stated above, Defendant Arpaio asserts
that the Court does not have the power to fashion a remedy based on the materials at
issue because the alleged violation merged with the Court’s final judgment on the
merits and extinguished all rights of the parties toward any such remedy.
PSB Investigations Generally
12. Does Doc. 1420 (the unredacted version of Ex. 2943) disclose all assigned
PSB investigations of which MCSO is aware with assigned IA numbers that are related to
this case?
Pursuant to the legal authorities stated in Section I above, Defendant
Arpaio objects to this question on the basis that responding to any request may
violate Defendant Arpaio’s Due Process Rights, impermissibly shifts the burden of
persuasion and impermissibly calls for admission of evidence after evidence has
closed. For this reason, Defendant Arpaio objects to Question 12. However
pursuant to Defendant Arpaio’s ongoing obligation to supplement discovery, and
without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that an updated
version of Doc. 1420, which includes an additional identification case (IA2015-0780)
was provided to the Monitor on October 16, 2015 as MELC1404203a –
MELC14042017a.
(a) Is there any evidence which would suggest that Doc. 1420 and/or Ex.
2943 does other than accurately state the IA number, Principal, Findings, Discipline,
Summary and Property associated with each investigation?
5Defendant Arpaio also notes that when the issue of these videos arose,
Defendant Arpaio and MCSO undertook a massive effort to review 8900 videos andseasonably disclose them to Plaintiffs and the Monitor.
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For the same reasons stated in Defendant Arpaio’s response to Question
12 above, Defendant Arpaio objects to being required to answer Question 12(a)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that no such
evidence exists.
(b) Are there matters or investigations related to this case or the
Armendariz investigations, or the matters raised by them, of which MCSO is aware, tha
have not yet been or never were assigned an IA case number?
For the same reasons stated in Defendant Arpaio’s response to Question
12 above, Defendant Arpaio objects to being required to answer Question 12(b)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that no such
additional matters or investigations exist.
Have any such investigations ever been suspended, abandoned or otherwise not yet
completed? If so please specifically identify such matters to the Court.
For the same reasons stated in Defendant Arpaio’s response to Question
12 above, Defendant Arpaio objects to being required to answer Question 12(b)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that no such
additional matters or investigations exist.
(c) Pursuant to Doc. 1420 and/or Ex. 2943 MCSO is still engaged in
ongoing internal investigations. Some, although now completed, may not have been
completed and provided to Plaintiffs prior to the time that these contempt hearings began
Some, by the acknowledgement of the Defendants, will not have been completed until at
least shortly after the evidentiary proceedings in this contempt hearing have terminated,
see, e.g., IA2014-221, and still have yet to be provided to the Parties and/or Cour
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Monitor. For the reasons set forth above, with respect to all of the investigations
identified in Doc. 1420 and/or Ex. 2943, please identify as precisely as possible: (1) the
specific date on which the IA number was drawn or the investigation began whichever is
earlier; (2) whether the investigation remains open; (3) the specific date on which the
investigation was completed; (4) the specific date on which the complete investigation
findings and supporting materials were provided to the Monitor; and (5) the specific dateon which the completed investigation findings and supporting materials were provided to
the Plaintiff. If the investigation remains open please so indicate to the extent that Doc.
1420 does not already do so.
For the same reasons stated in Defendant Arpaio’s response to Question
12 above, Defendant Arpaio objects to being required to answer Question 12(c)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that an updated
version of Doc. 1420 and/or Ex. 2943, which includes an additional identification case
(IA2015-0780), was provided to the Monitor on October 16, 2015 as MELC1404203a
– MELC14042017a. This version contains information responsive to the Court’s
questions in 12(c).
(d) Please provide this same information for any investigations identifiedin response to (c) above.
For the same reasons stated in Defendant Arpaio’s response to Question
12 above, Defendant Arpaio objects to being required to answer Question 12(d)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
See Defendant Arpaio’s response to question 12(c), above.
(e) Do any of the PSB investigations enumerated in Doc. 1420 and/or
Ex. 2943 indicate that Chief Deputy Sheridan recused himself from any participation in
those investigations?
For the same reasons stated in Defendant Arpaio’s response to Question
12 above, Defendant Arpaio objects to being required to answer Question 12(e)
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However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that Chief
Deputy Sheridan did not recuse himself from any participation in the investigations
enumerated in Doc. 1420.
(f) Do any of the PSB investigations enumerated in Doc. 1420 and or
Ex. 2943 indicate that Captain Bailey recused himself from any participation in those
investigations?
For the same reasons stated in Defendant Arpaio’s response to Question
12 above, Defendant Arpaio objects to being required to answer Question 12(f)
However, pursuant to Defendant Arpaio’s ongoing obligation to supplement
discovery, and without waiving the aforementioned objections, he states as follows:
Counsel for Defendant Arpaio is informed and believes that Captain
Bailey did not recuse himself from any participation in the investigations
enumerated in Doc. 1420.
13. There has been apparently conflicting testimony by MCSO personnel as to
whether the timeline by which a PSB administrative investigation must be completed is
tolled by the instigation of a related criminal investigation. There has also been testimony
that the PSB administrative timeline is 120 days, and other testimony that it is 180 days.
The conflicting testimony regarding the PSB administrative timeline is
the result of a statutory change that occurred on January 1, 2015. Since January 1
2015, the PSB administrative timeline has been “180 calendar days” pursuant to
A.R.S. § 38-1110 Prior to January 1, 2015, the PSB administrative timeline was “120
business days” pursuant to ARS § 38-1105(B)(1) (in effect until Dec. 31, 2014).
Please identify and provide the relevant provisions of:
(a) The policy, contract, precedent, regulation or any other authority
suggesting what the timeline is or was during the years since 2011; and,
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The conflicting testimony regarding the PSB administrative timeline is
the result of a statutory change that occurred on January 1, 2015. Prior to January
1, 2015, the PSB administrative timeline was “120 business days” pursuant to ARS §
38-1105(B)(1) (in effect until Dec. 31, 2014). However, since the change, the PSB
administrative timeline is “180 calendar days” pursuant to A.R.S. § 38-1110, MCSO
Policy GH-2, and MCSO Briefing Board 14-73.
(b) Any policy, contract, precedent, regulation or any other authority
which suggests that the running of the time period is tolled by an intervening and related
criminal investigation.
See A.R.S. § 38-1110(B)(1) and MCSO Policy GH-2.3(B)(6)(a).
14. Please provide any legal authority that might suggest that one an officer is
deceased, statements made by him in a compelled administrative interview may not be
used or taken into account in a corresponding criminal investigation.
In Garrity v. State of N.J ., 385 U.S. 493, 500 (1967), the Supreme Court
held that when a police officer being investigated was given the choice either to
incriminate himself or to forfeit his job under New Jersey statute dealing with
forfeiture of office or employment, tenure, and pension rights of persons refusing totestify on ground of self-incrimination, the officer’s choice to make a confession was
not voluntary but was coerced, and the Fourteenth Amendment prohibited its use in
a corresponding criminal investigation. Id. Importantly, the concerns expressed in
Garrity do not fade if the officer is deceased because statements made during a
compelled administrative interview are akin to those made under duress. See id. at
498-99 (“Where the choice is between the rock and the whirlpool, duress is inherent
in deciding to ‘waive’ one or the other.”) (quotations omitted). Garrity recognized
that it was the compelled nature of an Officer’s testimony that was the driving force
behind prohibiting its use in subsequent criminal investigations. Accordingly, the
death of an officer after a compelled administrative interview does not change the
coercive nature the questions asked nor the questionable circumstances of the
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response given by the Officer. Defendant Arpaio, therefore, maintains that once an
officer is deceased, statements made by him during a compelled administrative
interview may not be taken into account in a corresponding criminal investigation.
February Discovery Orders
15. Captain Skinner testified that he issued internal directives within MCSO
pertaining to compliance with the Court’s February 2015 discovery orders. If such
directives are part of the evidence admitted in the record, please indicate where they can
be located.
Counsel for Defendant Arpaio is informed and believes on January 27
2015, Captain Skinner distributed via e-mail Plaintiffs’ Motion to the Court for
Expedited Discovery (Doc. 862) to all Bureau Commanders and discussed the
Motion with Chief Deputy Sheridan and the Bureau Chiefs at MCSO’s Weekly
Update Meeting. On February 17, 2015, Captain Skinner printed hard copies of the
Order Granting Plaintiffs’ Motion for Expedited Discovery (Doc. 881) and discussed
the Order with Chief Deputy Sheridan and the Bureau Chiefs at MCSO’s Weekly
Update Meeting. On March 4, 2015, Captain Skinner redistributed the Court’s
Order via e-mail to all Bureau Chiefs. Defendant Arpaio is not aware that these
communications and e-mails are evidence admitted in the record, however,
Defendant Arpaio points the Court to Captain Skinner’s testimony on November 10
2015, at pages 4219-4221 and 4266-4269, where he generally testified on the
foregoing events.
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DATED this 4 day of December , 2015.
JONES, SKELTON & HOCHULI, P.L.C.
By s/ John T. MastersonJohn T. MastersonJoseph J. PopolizioJustin M. AckermanJacob L. Speckhard2901 North Central Avenue, Suite 800Phoenix, Arizona 85012Attorneys for Defendant Joseph M. Arpaioin his official capacity as Sheriff ofMaricopa County, AZ
CERTIFICATE OF SERVICEI hereby certify that on this 4
thday of December, 2015, I caused the
foregoing document to be filed electronically with the Clerk of Court through the
CM/ECF System for filing; and served on counsel of record via the Court’s CM/ECF
system.
/s/ Mary M. Soto
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