Melendres # 795 | D.ariz. 2-07-Cv-02513 795 ORDER w Report Attached
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Melendres, et al.,
Plaintiffs,
v.
Maricopa, County of, et al.,
Defendants.
No. CV-07-02513-PHX-GMS ORDER
Pending before this Court are Defendants’ (1) Application to Withdraw as Counse
of Record for Defendants (Doc. 773) and (2) Request to Redact the Monitor Report, the
Brief and Response to which have been filed under seal. (Docs. 784, 791.) After
considering such matters in briefing and at oral argument the Court further perceives the
need to set forth specifications for further proceedings under its order. The Court
therefore determines as follows.
I. BACKGROUND
Approximately one year after the Court entered its Findings of Fact and
Conclusions of Law (Doc. 579), and seven months after it entered its Supplemental
Injunction (Doc. 606), it was informed by Defendants that MCSO had assumed the
investigation of Deputy Charley Armendariz from the Phoenix Police Department
Armendariz was an MCSO deputy who was assigned to the Human Smuggling Unit
(HSU). He testified at the underlying trial and his arrest statistics were admitted into
evidence and proved relevant to the outcome for Plaintiffs. Armendariz was also
personally implicated by some of the specific allegations made by two representatives of
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the Plaintiff class.
After MCSO’s criminal investigation into Deputy Armendariz began, MCSO
obtained a search warrant for his home. During their execution of the search warrant
MCSO discovered significant quantities of illegal drugs as well as hundreds of personalitems belonging to unknown individuals—including credit cards, drivers licenses
Mexican identification cards, and other personal property. Many of these items
potentially belonged to members of the Plaintiff class. Officers also discovered
numerous video recordings, apparently going back several years, of traffic stops
Armendariz had made while on patrol with a camera mounted in his eyeglasses. The
video from that eyeglass camera also revealed that a camera was mounted on the
dashboard of his patrol vehicle. Deputy Armendariz was arrested, and after he failed to
report to probation the following week officers discovered Armendariz’s body in his
home after an apparent suicide.
MCSO reviewed a few of Armendariz’s videotaped stops prior to the hearing with
the Court on May 14, 2014 and determined that, in a number of them, Deputy
Armendariz engaged in what MCSO classified as problematic behavior—e.g. behavior
that was contrary to departmental policy, the law, the constitutional rights of those he
stopped, or otherwise in violation of this Court’s orders. Further, MCSO determined that
other officers, and at least one supervisor of Deputy Armendariz who also testified at the
trial in this action, were present during one or more problematic stops.
Upon questioning by the Court at the hearing, Chief Deputy Sheridan
acknowledged that there was no departmental policy that prevented deputies from
videotaping their own traffic stops and that there was reason to believe that some deputies
did so. Further many, if not all, deputies made audio recordings of their traffic stops pursuant to departmental practice and had done so for some time, and there were other
video devices, both dashboard and body-mounted, that had been used by MCSO. There
was no procedure by which such recordings were collected and catalogued by the MCSO
No such materials had been provided to Plaintiffs, although Plaintiffs avowed that they
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asked for such materials prior to trial.
This Court’s supplemental injunctive order (Doc. 606) was fashioned to a great
extent with the participation of the parties, both by brief and at the Status Conference
held on August 30, 2013. The Supplemental Injunction was based upon the factualdeterminations made at trial concerning both specific instances of past MCSO operations
that ran afoul of the Constitution, as well as the general policies and practices in place
within MCSO that required systematic correction to cure the ongoing deprivation of the
constitutional rights of the Plaintiff class. These flawed practices included erroneous
police training, MCSO’s failure to adequately supervise rank-and-file officers, and other
deficits. The measure of the Court’s injunctive relief, however, was necessarily based on
the evidence admitted at trial of these various shortcomings. Thus, if there was not
sufficient evidence of system-wide deficiencies on the part of the MCSO admitted at trial
the Court did not enter remedies to the extent requested by the Plaintiff class. (See, e.g.
Doc. 603 at 89–91 (declining to incorporate into the Supplemental Order Plaintiffs’
suggestions regarding the inadequacy of MCSO’s existing internal investigative practices
due to the lack of evidence presented at trial on that issue).)
The matters raised by the Armendariz materials implicated a number of different
concerns for the Court:
1. In light of the property found in the possession of Deputy Armendariz
some of which apparently came from members of the Plaintiff class, and the generalized
allegations he made, the Plaintiff class may have had their constitutional rights
systematically deprived by the MCSO and the HSU in ways in addition to those
previously identified by the Court.
2. The failure of MCSO to produce the materials properly requested byPlaintiffs, and which the MCSO was under an obligation to provide, may have denied
Plaintiffs the opportunity to present such evidence at the original trial.
3. Because of MCSO’s apparent failure to proffer such materials at an earlier
juncture, many pieces of evidence that may once have been available and highly relevant
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to the Plaintiffs’ rights to relief may have since been destroyed.
4. The Plaintiffs may have also been precluded from presenting evidence
related to deficiencies in MCSO’s investigation of complaints against deputies, the
adequacy of employee supervision within MCSO and the HSU specifically, and theoverall sufficiency of the internal investigation process within MCSO, as revealed by the
Armendariz materials and their sequelae.
5. Evidence kept from Plaintiffs may have hampered Plaintiffs’ ability to
impeach the testimony of various MCSO witnesses. Such evidence now may suggest tha
some witnesses were untruthful on the witness stand or in pretrial discovery processes.
6. This evidence and impeachable testimony, if admitted at the trial of this
matter, could have resulted in a significantly expanded scope of injunctive relief entered
by this Court.1
7. To the extent that officers had recorded problematic behavior, and MCSO
had no policy regarding the collection or maintenance of these recordings, there was a
substantial risk of which MCSO should have been aware that officers might destroy
existing recordings rather than surrender them to the MCSO once they understood they
were being gathered in light of the Armendariz videotapes.
1 In making this observation the Court observes that, among other things, before trial in
this matter, Plaintiffs established that Defendants had destroyed other documents that
may have pertained to whether Defendants were violating the constitutional rights of the
Plaintiff class. (Doc. 493.) Plaintiffs nevertheless succeeded at trail in establishing that
the Defendants were violating their constitutional rights without recourse to the
evidentiary inferences that such destruction might have permitted. Plaintiffs also proved
at trial that at least some MCSO deputies were violating the preliminary injunction
entered by this Court on December 23, 2011. (Doc. 494.) Further, as they have
acknowledged, after this Court made findings of fact and conclusions of law, both Sheriff
Arpaio Chief Deputy Sheridan and Chief Trombi mischaracterized this Court’s findingsand subsequent Orders to MCSO deputies and to the public. Despite MCSO’s
compliance with some of the Orders of the Court, the above occurrences do not inspire
confidence in the MCSO’s willingness to comply with its legal obligations or with this
Court’s Orders.
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At the May 14, 2014 hearing in which the MCSO presented the Court with the
Armendariz material, the Court was concerned with how best to ensure the rapid and
department-wide retrieval of all outstanding, relevant recordings made by officers that
might still be in existence. The Court thus sealed the hearing and ordered that itssubstance was not to be shared with those outside the Courtroom. (Doc. 700 at 39–40,
69.) The Court further noted that MCSO was to immediately formulate and obtain the
Monitor’s approval of a plan designed to quietly retrieve such recordings from its officers
and employees. ( Id. at 25–27.) Approximately two hours later, the Monitor then held a
lengthy meeting with the higher officials of MCSO and members of the monitoring team
in which an investigative course of action was agreed upon. Immediately after that
meeting, however, Chief Deputy Jerry Sheridan informed the Monitor that between the
hearing in the morning and the meeting with the Monitor in the early afternoon, he and
Sheriff Joseph Arpaio had met with MCSO’s lawyers. At some point, Chief David
Trombi was called into the meeting and instructed to send an e-mail to all Departmental
Commanders, including the supervisor who had been present during one of Armendariz’s
problematic stops, to advise them that they should collect all such recordings from their
personnel. This department-wide email compromised the plan arrived at by MCSO and
the Monitor for collecting such recordings. Neither the Sheriff nor Chief Deputy Sheridan
informed the Monitor during their meeting that MCSO had already subverted the plan at
which they subsequently arrived. As a result, the hearings related to the Armendariz
recordings were taken out from under seal, as there was no longer any reason to suppose
that deputies would not be warned in advance that the MCSO was collecting such
recordings. Following this, MCSO conducted a survey-approach of its present and past
employees to collect any outstanding recordings.During this same period, MCSO also uncovered and disclosed the existence of
systematic recordings undertaken by HSU and recordings made at the apparent direction
of other MCSO departments. There was also evidence that recordings were made during
the relevant period and that are apparently no longer in existence. Apparently at least
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some of these recordings were requested by Plaintiffs in pre-trial discovery, but were not
provided to Plaintiffs prior to trial.
MCSO began an internal criminal and administrative investigation into HSU,
triggered both by the Armendariz evidence and by the allegations of Deputy CiscoPerez—a former MCSO deputy who had been dismissed for misconduct. The
administrative investigations were placed on hold while the HSU criminal investigation
proceeded. Experienced members of the Monitor team observed the interna
investigations, provided questions for both the criminal investigation and the
administrative investigation when it recommenced, and offered suggestions as to various
areas of inquiry.
When the Monitor was informed that MCSO had completed and closed the
criminal investigation into HSU, it prepared an initial evaluative report for the Court on
which both parties were allowed to comment. The Report found the conduct of two of the
assigned investigators, Lieutenant Seagraves and Sergeant Fax, satisfactory and even
praiseworthy. Lieutenant Seagraves was assigned to investigate the cause of Deputy
Armendariz’s death. Sergeant Fax was assigned to compile the complaints and other
issues surrounding Deputy Armendariz’s service within the MCSO.
In addition to the satisfactory work of Lieutenant Seagraves and Sergeant Fax in
their limited roles, however, the Report also found a great number of deficiencies in the
investigation of alleged misconduct of HSU deputies generally. These investigations
were conducted by other department personnel. The Report determined that in this
investigation the MCSO employed deficient investigative tactics, suffered from serious
irregularities in departmental processes as it related to persons under investigations, and
suffered from potential conflicts of interest. During the process of responding to thereport, MCSO identified under seal (and with more specificity than it previously had)
pending administrative investigations and their identified targets that were spawned by
the two investigations.
The Court then held a status hearing on October 28, 2014 to evaluate the adequacy
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of MCSO’s self-investigation. The part of the hearing that related to the ongoing
administrative investigations identified by Defendants was held under seal. During the
public portion of the hearing the Court expressed its concern that the internal crimina
investigation conducted by MCSO’s Professional Standards Bureau (PSB) wasinadequate and prematurely closed. Since the hearing, additional evidence has come to
light further demonstrating the inadequacy of that investigation.
In addition, the Court questioned the Defendants’ assertion of privilege to attempt
to justify their countermand of the Court’s mandate regarding the collection of recordings
made by officers that had previously been uncollected by the MCSO. At the hearing, and
in the briefing that preceded it, MCSO defended the instructions to Chief Trombi to
broadcast their collection efforts to all departmental commanders, even though such
instructions violated the direct order of this Court, by claiming that the original plan was
inconsistent with protections offered to MCSO employees by Title 38 of the Arizona
Revised Statutes. Defendants further represented that MCSO will continue to resist the
Monitor’s directives to the extent that they are inconsistent with such “rights.” See Ariz
Rev. Stat. § 38-1101.
After the October 28 hearing, significant additional materials responsive to both
Plaintiff’s pretrial discovery requests, and apparently relevant to the criminal
investigation closed by Defendants was discovered and subsequently revealed to this
Court.
The failures to follow the Court’s directives, the substantive inadequacies of many
of the MCSO’s internal investigations, the narrowness of the scope of the continuing
administrative investigations noticed by the MCSO, and the subsequent materials found
after the closure of the MCSO internal criminal investigation are troubling for the CourtIn addition to the concerns set forth above, the matters above suggest that Defendants
and/or some of their employees may continue to be engaged in efforts to frustrate the
implementation of this Court’s Orders, and may in fact be using the internal investigative
processes to conceal widespread departmental misconduct, as alleged at least in part by
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Deputies Armendariz and Perez, that occurred during the periods relevant to this lawsuit
and this Court’s subsequent Orders. The statements previously made by Deputies
Armendariz and Perez substantiate these suspicions in part. Accordingly, the Court
makes the following rulings regarding MCSO’s redaction request, and issues thefollowing clarification of the Monitor’s independent authority to investigate under its
previous orders.
II. PRIVILEGE
As this Court has previously articulated, MCSO’s assertions of statutory and
common law privileges over its evidence-collection and investigative efforts are largely
without colorable merit.
Issues of privilege in federal question cases are determined by federal law. Fed. R
Evid. 501; Lewis v. United States, 517 F.2d 236, 237 (9th Cir. 1975). The privilege and
personal privacy doctrines embodied in state statutes and constitutions may warran
consideration by this Court for reasons of logic and comity, but they are not controlling
Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1115 (9th Cir. 1976); Kerr v
U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198–99 (9th Cir. 1975). Federal courts
adopt new evidentiary privileges only to the very limited extent they “promote[]
sufficiently important interests to outweigh the need for probative evidence.” Univ. of Pa
v. E.E.O.C., 493 U.S. 182, 189 (1990) (quoting Trammel v. United States, 445 U.S. 40
51 (1980)). A “strong presumption in favor of access” is the starting point for any
privilege analysis, which can be overcome only if the party seeking to seal a judicia
record establishes “compelling reasons, supported by specific factual findings,” for the
application of the asserted privilege. Kamakana v. City & Cnty. of Honolulu, 447 F.3d
1172, 1178–79 (9th Cir. 2006). Moreover, courts “strictly construe” the rules governingclaims of privilege. Trammel, 445 U.S. at 50.
Federal civil rights cases brought against state and local law enforcement
crystallize the tension between the confidentiality interests reflected in the privilege rules
and the overarching truth-seeking principles that demand open access to judicial records
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in the administration of justice. Cf. Kamakana, 447 F.3d at 1178. Federal statutes that
empower plaintiffs to check abuses of power by state governments would be impotent if
“state authorities could effectively insulate themselves from constitutional norms simply
by developing privilege doctrines” that frustrate plaintiffs’ ability “to develop the kind ofinformation they need to prosecute their federal claims.” Kelly v. City of San Jose, 114
F.R.D. 653, 656 (N.D. Cal. 1987). Nevertheless, the court’s calculus must also
accommodate the legitimate risk that law-enforcement interests might be compromised
by the disclosure of certain kinds of sensitive information to the general public.
It is against this backdrop that the Court considers the applicability of the
identified privileges to portions of the Monitor’s Report dated September 28, 2014, as
well as the argument Defendants advanced during the October 28, 2014 Status
Conference that Arizona law justified their subversion in advance of the agreed-upon
course of action in retrieving audio and video recordings by rank-and-file officers. The
Report was made pursuant to the Monitor’s obligations under the Supplemental
Permanent Injunction (Doc. 606) to provide an update and assessment to the Court on the
sufficiency of ongoing MCSO investigations. Defendants’ primary justification for the
requested redactions of the Report is section 38-1101 of the Arizona Revised Statutes
which gives rise to limited protections for a statutorily-defined “law enforcement officer”
when he or she is being questioned by his or her “employer” and the officer or “the
employer reasonably believes the investigation could result in a dismissal, demotion, or
suspension.” Id. § 38-1101(A). Section 38-1101(L) also creates a narrow exception to
information in an officer’s personnel file that otherwise must be available for public
inspection.
The Court rejects Defendants’ overly broad use of section 38-1101 for threereasons. First, nothing in the language of the Arizona Revised Statutes lends itself to the
conclusion that section 38-1101 creates a civil litigation privilege that could be invoked
in the face of Court-ordered disclosure requirements. In other instances in which a state
statute creates litigation privileges, it does so explicitly. See Ariz. Rev. Stat. §§ 12-2232–
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2235. In contrast, the plain language of section 38-1101 merely sets forth procedural
rights conferred on state law enforcement officers facing administrative inquiries, such as
limitations on what portions of the officers’ personnel files are publically accessible
during the investigation. Compare id. § 38-1101 with id. § 39-121 (requiring that publicrecords be open for inspection by “any person” “at all times”). Apart from the Minute
Entry cited to by Defendants (Doc. 783, Ex. B), which is from a state Superior Court and
is, at any rate, not binding on this Court for the reasons set forth above, the Court has
found no Arizona case holding that section 38-1101 creates the kind of privilege
Defendants assert. Given that privilege rules are strictly construed, see Trammel, 445
U.S. at 50, the Court declines to adopt Defendants’ construction of Title 38.
Second, the narrow provision relied upon by Defendants (specifically, sub-section
(L)) does not excuse Defendants’ deviation from the Orders of this Court. Defendants
have indicated that MCSO had no policy prohibiting an officer from self-recording a
traffic stop, and, in fact, issued audio and video equipment to officers and directives to
record such stops. As such, neither MCSO nor its employees had a reasonable basis for
believing that the collection and inventory of these recordings would result in an
employee’s “dismissal, demotion, or suspension.” Ariz. Rev. Stat. § 38-1101(A)
Moreover, section 38-1101(C) states that employers need not “[d]isclose any fact to the
law enforcement officer . . . that would impede the investigation,” and section 38-
1101(D)(2) further exempts employers from the process requirements of sub-section (A)
when engaging in “[p]reliminary questioning to determine the scope of the allegations or
if an investigation is necessary.” Thus, even section 38-1101, by its own terms, reflects a
legislative prioritization of efficacy and integrity in internal investigations over some of
its enumerated process rights. MCSO’s insistence that section 38-1101 mandated that itinform officers of its retrieval efforts prior to recovering the recordings is without merit.
Third, this action was instituted in federal court pursuant to a federal statute;
accordingly, it is federal law—not Arizona law—that governs the existence and scope of
an asserted privilege. See Kerr , 511 F.2d at 197. The Arizona legislature’s choice to
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create some statutory protection may inform the calculus this Court employs to determine
questions of privilege in federal question cases, but it is not determinative. There is no
reason state officials who violate federal laws should receive preferential treatment in
asserting privileges based on their state of residency. To conclude otherwise wouldundermine two major federal policies: ensuring the vigorous enforcement of civil rights
statutes against persons who violate the Constitution under the color of state law, and
maintaining the broadest scope of access to relevant evidence in civil litigation.
In spite of the foregoing, the Court recognizes that full public disclosure of the
record is often injudicious and may even threaten Defendants’ ability to observe the
Orders of this Court. In instances like this in which discretion may be warranted, the
party seeking to seal the record must, by Motion, set forth compelling reasons for
withholding particular pieces of information from the public. Kamakana, 447 F.3d at
1178–79. In determining whether to seal the challenged materials, the Court will consider
all relevant factors including, on the one hand, the public’s history of access and the civic
interest in judicial oversight, accountability, and overall understanding of the judicial
process, and, on the other, the likelihood that disclosure would result in “improper use of
the material for scandalous or libelous purposes” or infringe on the needs of law
enforcement officials. See id. at 1179; Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1134–35 (9th Cir. 2003). Invoking a general category of privilege, without further
elaboration or specific linkage with particular evidence, is insufficient to satisfy the
compelling reasons standard. See Kamakana, 447 F.3d at 1184. Nor will hypothetical
harms to law enforcement interests, or the potential that disclosure would expose a party
to “embarrassment, incrimination, or . . . further litigation,” compel the Court to seal its
records. Id.Despite this Court’s earlier Order that Defendants articulate compelling reasons
for redacting the Monitor’s Report, Defendants still insist that a showing of “good cause”
suffices. The Ninth Circuit has identified two exceptions to the compelling reasons
standard, neither of which applies here. First, the standard of review is relaxed for
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documents that have traditionally been kept secret for important policy reasons. Id. The
class of materials covered by this exception is small: it extends only to those documents
for which there is “neither a history of access nor an important public need justifying
access.” Id. (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir1989)). Courts have found only two types of records to fall within this category: grand
jury transcripts and pre-indictment warrant materials. Id. The Kamakana court
emphasized that documents are not sealed on the grounds that they are traditionally kept
secret “simply because such documents are usually or often deemed confidential,” and it
rejected the argument that “documents subject to the privacy, law enforcement, and
official information privileges” automatically merit this exception. Id. at 1185. In other
words, while federal common law does recognize these qualified privileges, see Sanchez
v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990), litigants must still satisfy
the compelling reasons test in demonstrating that the potential disadvantages of
disclosure outweigh the potential benefits.
A second exception to the compelling reasons standard exists for materials
“unrelated, or only tangentially related, to the underlying cause of action.” Foltz, 331
F.3d at 1135. Specifically, in drawing this distinction, the Ninth Circuit concluded that a
“particularized showing” of “good cause” suffices to preserve the secrecy of documents
attached to non-dispositive motions that are already the subject of a protective order, such
as private materials unearthed during discovery. Id.
Although the Monitor’s Report was not filed in connection with a dispositive
motion, it is a court-ordered compliance report that not only constitutes one of the court-
required remedies in this case, but also springs from allegations that are directly relevant
to the underlying causes of action and the Defendants’ failure to comply with itsdiscovery obligations. Accordingly, under the reasoning of Kamakana, the presumption
of access attaches to the Report unless Defendants can establish compelling reasons for
its sealing. See Rocky Mountain Bank v. Google, Inc., 428 Fed. Appx. 690, 692, 2001
WL 145832 (9th Cir. Apr. 15, 2011) (concluding that a compliance report lodged with
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the district court was a “quintessential judicial document” and that “[a]bsent some further
determination, the public would be entitled to access to” it).
While Defendants identified the redactions they seek by page number, they have
not provided similarly specific explanations to justify the redactions. See Kamakana, 447F.3d at 1183–84. Instead, Defendants offer only generalized reasons for withholding
categories of information from the public, such as that disclosure “threatens both the
integrity and effectiveness of such investigations” and that the information for which
redaction is sought “fall[s] squarely within the domain protected by the constitutional
right to informational privacy.” This is precisely the type of justification the court
rejected in Kamakana. Id. at 1184 (“Simply mentioning a general category of privilege
without any further elaboration or any specific linkage with the documents, does not
satisfy the burden.”). Accordingly, the Court finds that Defendants have not demonstrated
compelling reasons to redact the following items in the record.2
A. References to the Status of the Armendariz Investigation
Defendants have proposed redactions to several generic references to forensic
examinations being conducted on Armendariz’s personal computer and cell phone, but
have not specified how their investigations would be affected by the publication of this
information. Defendants also object to the Monitor’s description of a timeline of
Armendariz’s employment history—including citizen complaints, internal investigations
and other incidents—that was constructed by a sergeant within MCSO. Incongruously,
Defendants do not request redaction of the timeline itself, which is also published in the
Report. In any case, as the Kamakana court made clear, blanket claims of harm to law
enforcement interests do not constitute “compelling reasons” to keep information out of
the public record. See 447 F.3d at 1185. Without more, redaction is unmerited.
2 An appropriately redacted version of the Monitor’s Report has, thus, been made
available, withholding only those portions for which compelling reasons favor non-disclosure.
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B. Statements by Armendariz Relating to Property and Evidence
Mishandling by HSU
Defendants have proposed to redact statements made by Deputy Armendariz
during a criminal interview that “it was common for other members of HSU to leave
items like identifications laying around the office” and that a “Detention Officer would
just gather them up and take them up to his house and put them in the garage.” (Monitor’s
Report at 18–19.) Defendants offer only that disclosure of this information would
undermine the effectiveness of their ongoing investigations. Nevertheless, information
regarding Armendariz and possible evidence mishandling by HSU is already widely
known, has been discussed in hearings open to the public, and has been reported on by
the media. See Kamakana, 447 F.3d at 1184 (concluding that sealing documents wasunwarranted where the information sought to be redacted was already publicly available)
Moreover, the property discovered at Armendariz’s residence is discussed elsewhere in
the Monitor’s Report without redaction. (See Monitor’s Report at 18.) Although
Defendants also contend that disclosing this information would “contravene the purpose”
of section 38-1101(L), the proposed redactions do not implicate any identifiable law
enforcement officers other than the deceased Armendariz. Again, such undifferentiated
statements do not establish compelling reasons to seal the record.
C. Information Concerning Armendariz’s Mental Health Records
The Monitor’s Report contains several mentions of Armendariz’s voluntary
entrance into and subsequent release from a Behavioral Treatment Center, at which time
he was deemed “fit for duty.” The reasons given in support of these redactions are
grounded in the personal privacy rights of Deputy Armendariz. The Court concludes
these do not constitute compelling justification for withholding these statements.
Individuals have a constitutional right to privacy in avoiding disclosure of
personal matters, which extends to medical information. Whalen v. Roe, 429 U.S. 589
599 (1977); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir
1998). However, this right is conditional, and subject to limited impairment if properly
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justified. Whalen, 429 U.S. at 602. Like all qualified privileges, the individual’s right to
privacy in this regard must be balanced against the public’s interest in disclosure. Carlson
v. Pima Cnty., 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984); see also Scottsdale
Unified Sch. Dist. No. 48 of Maricopa Cnty. v. KPNX Broad. Co., 191 Ariz. 297, 302955 P.2d 534, 539 (1998).
With respect to Armendariz’s history of mental health and substance abuse
problems, several factors weigh in favor of disclosure. First, Defendants have cited no
cases establishing that an employer can invoke a deceased employee’s right to privacy to
withhold information in litigation. To the extent that the right to privacy exists for this
sort of information, the privilege is intended for Armendariz’s benefit alone and is
personal to him. Furthermore, Armendariz’s mental health and suicide are already a
matter of public record. While an individual’s right to privacy in information does not
vanish merely because the information may be available through some other public
source, the expectation of privacy in it is certainly diminished. See Scottsdale Unified
191 Ariz. at 303, 955 P.2d at 540. Finally, and most importantly, the information bears on
several important issues in this case: Armendariz was a witness at the initial trial, and a
participant in many of the activities that gave rise to Plaintiffs’ claims. Further, his
competency as an officer and his performance before and after trial and this Court’s
Orders relate directly to both the underlying police practices that gave rise to this
litigation and the quality of supervision within MCSO. Because public policy supports
disclosure and Defendants have not demonstrated that withholding this information is
justifiable, the redactions are rejected.
D. Non-specific Information Regarding Ongoing Investigations
Defendants have also requested that generic references to the existence of ongoinginvestigations be redacted, such as the phrases “two lieutenants, two sergeants, and 4
detectives,” “to do what he referred to as ‘thematic’ interviews,” “supervisory
investigation,” and “the ‘property’ investigation,” among other things. Again, Defendants
have not explained how their investigations will be in any way impeded by the release of
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this information, and the request for redaction is denied.
E. Other Proposed Redactions for Which No Justification Is Offered.
Defendants have proposed redactions to several other sentences on page nineteen
of the Monitor’s Report but do not offer any explanation for why redaction is warranted.Because Defendants’ have made no effort to comply with Kamakana, those portions of
the Report will not be sealed.
III. ORDERS CONCERNING ONGOING INVESTIGATIONS
It is obviously one of the fundamental goals of the supplementary injunctive relief
to bring MCSO’s regular PSB operations up to the standard required to ensure that the
Constitutional rights of the members of the Plaintiff class are guaranteed by MCSO going
forward. In satisfaction of its injunctive obligations, MCSO must both investigate past
and potential ongoing violations by MCSO officers and their supervisors and also
evaluate the adequacy of their investigations. ( Id. at 44–45.) This applies both to routine
PSB operations, and to PSB investigations like this one that are directly related to the
underlying case involving alleged widespread MCSO misconduct. MCSO has admitted—
indeed, insisted—on numerous occasions that it understood its responsibilities under this
Court’s Orders to undertake investigations where appropriate and to generally cooperate
with the appointed Monitor in doing so. (See, e.g., Doc. 700 at 38, 62.)
The Monitor is under a duty from this Court to certify when the MCSO’s internal
investigation procedures render it in full and effective compliance with the requirements
of the injunction, which carries with it the concomitant responsibility to evaluate the
extent to which individual investigations comply with the Order. For example, under the
Supplemental Injunction the Monitor is specifically tasked with “evaluating the
effectiveness of the MCSO’s changes in the areas of supervision and oversight andreporting the same to the parties and the Court;” with “reviewing the corrective action
taken by the MCSO concerning any possible violations of this Order or MCSO policy
and procedures and reporting the same to the parties and the Court;” and with
“assess[ing] and report[ing] on the Defendants’ implementation of this Order, ” in
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addition to appraising MCSO’s compliance with the Order generally. ( Id. at 47, 50.) The
Order also provides that the “Monitor may make additional recommendations to the
Parties regarding measures necessary to ensure timely, Full and Effective Compliance
with this Order and its underlying objectives.” ( Id. at 54.)In making such assessments, cases like the present one—which provide the MCSO
with both significant allegations of departmental misconduct and significant motivation
to obfuscate the truth to avoid embarrassment—public exposure should the allegations
prove true in whole or in part, provide the Monitor with a unique opportunity to assess
MCSO’s willingness to implement an appropriate investigation and make appropriate
determinations in cases in which it might have significant impulse to do otherwise. An
adequate internal affairs division must be willing to engage in thorough examination and
in appropriate cases, agency exposure to discipline and painful public accountability. Of
course, to make an appropriate assessment of whether MCSO’s PSB is so acting, the
Monitor must necessarily have complete access to Defendants’ internal affairs
investigations. This includes familiarity with the manner in which MCSO pursues an
investigation—be it criminal or administrative in nature—the investigation’s initial and
continuing scope in light of the information the investigation uncovers, the performance
of the investigators, and the kind of discipline—if any—ultimately imposed at its
conclusion.
To protect that information gathered by MCSO in internal administrative
processes that are adequately conducted from being publicly disclosed contrary to
relevant state law or policy, or from being drawn upon by the Monitor in whatever other
independent investigations he or the Court deems necessary to implement, the Monitor
shall implement the following procedure:1. The Monitor shall assign two or more dedicated members of the
Monitoring team who shall be specifically identified to all parties as such (hereafter “IA
Monitors”).
2. These IA Monitors will continue to oversee MCSO internal investigations
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and are to evaluate, educate, assist, and provide investigative suggestions and/or
suggested appropriate investigate subjects and targets to MCSO.
3. The IA Monitors shall be walled off from other members of the Monitoring
team, and, with the exception of the Monitor or either of the two Deputy Monitors, andthis Court, the IA Monitors shall not share with anyone the information obtained through
any PSB investigation or MCSO personnel file. Nor, except as set forth in Clause 8
below, shall the IA Monitors play any role in any independent investigation conducted by
the Monitor. Nothing in this Order prevents the Monitor from communicating any
information to the Court.
4. To the extent that the IA Monitors suggest possible subjects and targets for
internal investigation to the MCSO that are related to the MCSO’s compliance with this
Court’s Orders, the subject matter of this lawsuit, or investigations related to or arising
from the allegations of Deputies Armendariz and Perez, such suggestions shall be in a
dated writing or electronic format submitted to the Captain of PSB and to the Monitor
and his Deputy Monitors.
5. When MCSO undertakes a new investigation that relates to (a) the MCSO’s
compliance with its discovery and/or disclosure obligations in this case, (b) the MCSO’s
compliance with the resulting orders of the Court in this case, or, (c), any criminal or
administrative investigations arising from or related to the Armendariz or Perez
investigations, it is ordered to lodge under seal with the Court and to provide the Monitor
written notice specifically identifying the subjects and targets under inquiry and
specifically referencing the administrative number assigned to the investigation.
Moreover, Defendants are to update the Court, through lodging a document under seal
and the Monitor by a separate writing when new subjects are added as targets of anexisting investigation. The Monitor, Deputy Monitor or IA Monitors may have access to
such information but may not disclose it to the public or other members of the Monitor
team without the authorization of the Court. The MCSO will similarly inform the Court
when it closes such an investigation without action, when it closes an investigation with
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powers are necessary to remedy [these] violations because they are charged with
protecting these rights.” Stone v. City & Cnty. of S.F., 968 F.2d 850, 861 (9th Cir. 1992)
To this end, “federal courts are not reduced to issuing injunctions against state officers
and hoping for compliance. Once issued, an injunction may be enforced.” Hutto vFinney, 437 U.S. 678, 690 (1978). The Court’s delegation to the Monitor of the authority
to conduct investigations is not exclusive of the Court retaining authority to make its own
inquiries and to compel attendance of MCSO officials necessary to undertake such
inquiries as it pertains to the enforcement of the orders of this Court. See Degen v. United
States, 517 U.S. 820, 827 (1996).
When the Monitor conducts inquiries at the Court’s behest or pursuant to his
independent authority in the Order:
1. MCSO’s cooperation with such investigations is required. MCSO shall also
provide any necessary facilities or resources to facilitate such investigations.
2. Neither the Monitor nor the Court is required to first offer topics or subjects
for internal investigation to MCSO that MCSO is not otherwise internally investigating
prior to initiating their own investigation.
3. The Monitor shall not initiate independent investigations into matters that
the PSB is investigating when the Monitor believes that MCSO is adequately, timely and
reasonably conducting the investigation.
4. Nothing in this Order waives any of the applicable rights or privileges
belonging to subjects of the Monitor’s investigations or interviews, including those
guaranteed by the Fifth Amendment, see Miranda v. Arizona, 384 U.S. 436 (1966)
Garrity v. New Jersey, 385 U.S. 493 (1967), and the common law.
5. To the extent that the subjects of these investigations claim any recourse tothe statutory rights outlined in section 38-1101, however, those rights are limited to those
set forth in the statute itself. Investigations initiated by the Monitor at the direction of the
Court are not investigations conducted by an “employer,” and do not implicate the
statutory protections of section 38-1101. See Ariz. Rev. Stat. § 38-1101(A). There are
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also no statutory protections for persons that are not subject to being dismissed, demoted
or suspended as the result of an administrative process. Nor is there ongoing protection
for materials generated in investigations that are terminated without action, that are
terminated because any adverse action is not timely appealed, or are terminated becausethe appeal is terminated. See id. § 38-1101(L).
6. To the extent that the MCSO claims that it is privileged or otherwise
protected from providing information to the Monitor in an independent investigation or
otherwise, and the Monitor contests the existence of the privilege or the protection, the
matter shall be decided by the Court.
The parties and the Monitor will proceed pursuant to these protocols.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Redactions to the Monitor’s
Report are ACCEPTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED granting Application to Withdraw as Counsel of
Record for Defendants, Doc. 773, subject to the conditions set forth on the record,
IT IS FURTHER ORDERED setting a hearing on Thursday, December 4
2014 at 8:30 a.m. in Courtroom 602 of the Sandra Day O’Connor Courthouse at 401 W
Washington Street, Phoenix, Arizona 85003. The Court may, upon further notice require
MCSO command staff and other personnel to be present to respond to inquiries
concerning their compliance with the Court’s orders on this date.
IT IS FURTHER ORDERED that a copy of this Order shall be delivered to the
Maricopa County Administrative Offices to the extent that it may require the
augmentation of the Monitors’ investigative staff.
Dated this 20th day of November, 2014.
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TO: Honorable G. Murray Snow
FROM: Chief (Ret) Robert
S.
Warshaw, Monitor
DATE: September 28, 2014
SUBJECT: Update and Assessment
ofMCSO s
Armendariz and Related Investigations
BACKGROUND
On April 30, 2014, Former Deputy Charlie Annendariz was arrested by the Maricopa County
Sheriffs Office on various drug charges, stemming from a police response to the Armendariz
home by the Phoenix Police Department (PPD). PPD responded for a burglary in progress call.
There was no merit to the call - Armendariz was essentially hallucinating - but PPD Officers
observed narcotics and potential evidentiary property which should have been in the custody
of
MCSO. MCSO served a search warrant and recovered marijuana and other narcotics, numerous
license plates, United States and Mexico driver licenses, other types of identification, credit
cards, and over 500 DVDs which were later determined to contain videos
of
thousands
of
enforcement actions taken by Armendariz.
On May 8 2014 at approximately 1435 hours, the MCSO Special Investigations Unit and the
MCSO Tactical Operations Unit found Ramon C. Charlie Ramirez-Armendariz deceased at his
home located at 3214 W. Eugie Ave., Phoenix, AZ. Armendariz was found lying face down on
the floor with his head suspended 4-6 inches off the floor by a rope affixed to a pool table. His
death was ultimately ruled a suicide.
These events were the subject of a May 14, 2014 hearing before the Court. Further, there were
several meetings involving me and my staff, who were present for a site visit from May 13-15.
On May 15th, the Court issued an extensive Order (originally under seal), requiring that several
steps be taken to gather evidence and fully investigate the activities of Armendariz and any other
MCSO employees who may have been using recording devices - either personally owned or
agency issued - during the course of their duties. This Order also mandated that MCSO work
closely with the Monitor on this investigation.
From the start, the investigation was poorly planned and executed. Rather than taking the
targeted and more invasive approach we suggested, MCSO initiated an ill-conceived survey
process designed to capture the existence of audio and video recording devices in use by MCSO
personnel, as well as any saved recordings. Internal Affairs, currently Professional Standards
Bureau (PSB), received hundreds
of
CDs and DVDs
of
motor vehicle stops, contacts and
interactions with residents and individuals in Maricopa County, including from the Armendariz
residence and the Human Smuggling Unit (HSU).
In the midst
of
the Armendariz investigation, a tern1inated deputy, Cisco Perez, alleged during an
unemployment hearing that it was common for HSU members to retrieve items from raids and
safe houses and retain them for personal or MCSO use. These statements seemed to corroborate
age
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the activity which led to the finding
o
many seized personal items at the Armendariz home. This
revelation derailed the in-progress administrative investigation, and prompted a criminal
investigation into the activities o current and former HSU members.
EXECUTIVE SUMMARY
A voluntary, self-survey instrnment was hastily designed and deployed in response to the
requirements o the Court Order. This self-survey instrnment was not provided careful
developmental attention and as a result was designed in what the Monitoring Team considers to
be a flawed manner. The instrnment failed to adequately and completely address the needs as
expressed in the Court Order to obtain specific information. Additionally, the instrnment was
designed
as
a voluntary instrnment that also led to delayed responses, incomplete responses,
and no response at all from members o the MCSO. As a result o the use o this instrnment, data
received has been inconsistent and incomplete and remains so to this date.
MCSO failed to recognize the complexities o the Armendariz suicide investigation from its
initiation. The pursuit
o
this investigation by the MCSO has uncovered severe deficiencies in
several areas
o
MCSO operations. Flaws have been identified in critical areas such as
investigatory training and intenogation techniques. Poor interrogation skills were observed
during the administrative and criminal interviews conducted in response
to
allegations made by
Deputy Cisco Perez, who had been terminated. The lack o a properly prepared investigative
plan prior to initiating the interview process highlighted the lack
o
training and established
protocols for investigators assigned to the Professional Standards Bureau.
Also revealed were weaknesses in the evidence collection and cataloging mechanisms employed
by the department. As a result, witnesses were subject to secondary interviews and the
cataloging o evidence has remained in constant turmoil. This turmoil has caused extensive
investigatory delays in attempts to conelate multiple items
o
seized evidence with individuals,
property and audio and/or video recordings.
Video reviews have been conducted without a standardized review process and are subject
to
personal views and bias. This lack o standardized process has exacerbated problems with the
cataloging
o
evidence that was seized from the Armendariz residence, as well as the
documentation
o
the individual reviews themselves.
The established chronology o the MCSO tenure o Deputy Armendariz highlighted problems in
the performance review and appraisal process for MCSO personnel. Lacking were supervisor
reviews that included developmental programs and documentation, and the follow through with
progressive discipline. His career has provided insight into institutional problems with the
receipt and logging
o
citizen complaints, the initiation and investigation
o
internal
investigations, and the cataloging o PSB proceedings. Also o concern is the lack o a viable
and consistently utilized disciplinary system department wide.
I SELF-SURVEYS
1
INITI L OBSERV TIONS
age 2 o 40
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Following the court hearing o May 14, 2014, Monitoring Team members Chief Martinez, Ms.
Ramirez and I met with Chief Deputy Sheridan, Captain Holmes and Ms. Christine Stutz from
the Maricopa County Attorney s Office (MCAO)
to
develop an investigative strategy that would
incorporate the coercive powers
o
Internal Affairs to ascertain information regarding deputies
personal use, capture, and cataloging o audio and video recordings. Chief Deputy Sheridan
initially advocated for a softer approach. I expressed my strong opinion that MCSO should use a
more elevated approach. After MCAO attorney Christine Stutz supported my position, Chief
Deputy Sheridan then announced that it was always his position to employ the Internal Affairs
methodology. During the course o this meeting Sheriff Arpaio made an appearance, but offered
no substantive contribution prior to his departure approximately 1 minutes later. As all o us
departed the meeting, it was my belief that the attendees were in clear agreement o the future
process that would be undertaken.
At approximately 5: 15PM, while returning to your chambers, I received a phone call from Chief
Deputy Sheridan. He notified me that without his knowledge, Deputy Chief Trombi distributed
an email in direct conflict with the decisions
o
our collective group. This email follows.
From:
David
Trombi
- SHERIFFX
Date: JV ay 14, 2014 at 15:41:22 }.;JST
To: Bill VanAusdal - SHERIFFX ,
SHERIFFX
, Dante Proto
, Dmdd Toporek
,
Donald
Rosenberger
, Fred ivlcCann
F }.;fcCann@}.;JCSO.maricopa.gov>, George Hawthorne
, Jmnes Schoeninger
J [email protected]>, Joe Rodriquez
J
[email protected]>, John D'Amico
, John Kleinheinz (Capt)
J Kleinheinz@}.;JCSO.Nfaricopa.gov>, Joseph Sousa
J
[email protected]>, Ken Booker
, Kristina Henderson
K Henderson@}.;JCSO.maricopa.gov>, Larry Kratzer
, iVlaLinda Johanning
, }.;farkley Johnson
, Paul Ellis
, Peter Nfetzler
,
Randy
Brice
, Todd Hoggatt
T [email protected]>, William Hindman
W
[email protected]>, Brian Jakowinicz
Dan Whelan -
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
SHERIFFX
Cc: Jerry Sheridan - SHERIFFX J [email protected]>, Ken Holmes (A)
- SHERIFFX K [email protected]>, Lany Farnsworth - SHERIFFX
,
Edward
Lopez
SHERIFFX
age
3
o
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Subject: Past Video Recordings
Several ·weeks back we collected information fi·om your districts/divisions regarding how many
video cameras (dash and body) were being utilized
in
your normal patrol fimctions. A general
list was compiled by district/division outlining how many, personal or issued and what is done
with the video when obtained. I
am
now directing all district /division commanders
to immediately ascertain where these past videos are or what has been done with them.
J'vfore
importantly, I need to have ALL these videos gathered and sent to Internal Affairs ASAP Attn:
Sgt. iV ike Reese. Please note;* ALL VIDEO
JS TO E
PRESERVED. Simply gather it and send
as directed.
f
video is currently in Property and Evidence, please note that on a spreadsheet
along ·with the name
of
he deputy. Ensure we go back as far as possible to gather all video. It is
imperative that we are as thorough as possible in this endeavor. f ou have questions please call
me directly.
At approximately 6:00pm that evening, Chief Martinez spoke with Chief Deputy Sheridan by
phone, reaffim1ing the retention
o
video data requirements as directed by your Order.
t
is
during this conversation that Deputy Chief Sheridan described another early afternoon meeting
that had occurred at MCSO and included Sheriff Arpaio, Chief Deputy Sheridan, Attorney Tom
Liddy, Attorney Tim Casey, and Attorney Christine Stutz. Chief Deputy Sheridan stated that
towards the end o the meeting, Deputy Chief Trombi was summoned into the meeting and was
directed
to
pursue the course o action outlined in his email.
Chief Martinez attempted to ascertain why Chief Deputy Sheridan would allow our meeting to
continue for two and a half hours, identifying a preferred investigative strategy, when MCSO
executive staff with counsel present had already made and communicated a contrary decision to
subordinate personnel. Chief Deputy Sheridan appeared dumbfounded and could not recall that
Deputy Chief Trombi had been directed to pursue this course
o
action in a meeting in which
Chief Deputy Sheridan was present. I note that Attorney Christine Stutz was present in both
meetings as well, and did not volunteer that an alternative course o action had already been
instituted.
·
At approximately 7:00pm that evening, Chief Martinez, Ms. Ramirez and I met with Chief
Deputy Sheridan. The Chief Deputy incredul01 1Sly had no recollection
o
Deputy Chief Trombi
being advised to take the course o action he had taken. Chief Deputy Sheridan attributed his
mental lapse to fatigue, stress and distractions. He would later write in a letter
to
me dated May
14, 2014, The fact that Chief Trombi had been directed earlier to make contact with the
Division Commanders never occurred to me. Whether it was from mental fatigue, confusion
from many options presented throughout the day I simply do not know why I did not recall.
Deputy Chief Trombi was then summoned into the meeting in order to assess what responses and
actions he had received from recipients
o
his email. More specifically, had the recipients
forwarded the directive to their subordinates
as
provided or did they alter the direction in any
way?
In
an attempt to obtain this infomrntion, Deputy Chief Trombi entered and left the meeting
on several occasions. At one point he indicated that some recipients had seen his email, while
others had not.
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During this meeting, I requested that Captain Holmes, the then commanding officer of Internal
Affairs (who has since been promoted to Deputy Chief), come into the meeting, to assess the
viability of resurrecting the originally agreed upon Internal Affairs approach with the Trombi
email directive as a possible parallel approach. Captain Holmes reluctantly supported the Internal
Affairs investigative approach.
During our meeting, we discussed the prospects of there being additional MCSO personnel who,
like Armendariz, had kept recordings. Deputy Chief Trombi stated that he did not believe other
MCSO deputies would do what Armendariz had done and that any deputies that may be in
possession of videos would come forward with their files. This was illustrative of the MCSO's
preconceived notion that appears to pern1eate through this entire investigation - that Charlie
Armendariz was a rogue employee and no other MCSO employees would engage in the same
types
of
activity.
We left MCSO at approximately 9:30 PM, somewhat dismayed at the events which had
unfolded. We reaffirmed the contents
of
your Order and advised Chief Deputy Sheridan that he
could expect continued follow up in the morning ofMay 15 2014.
On May 15 2014, an email was forwarded to all MCSO deputies requesting a response to the
requirements of the May 15
Court Order issued by Judge Snow in response to the arrest and
subsequent suicide
of
MCSO Deputy Ramon Charlie Ramirez-Armendariz. This email
contained a self-reporting survey. The target date for return
of
these surveys was May 21, 2014,
but by that date only 466 surveys had been returned. t was anticipated that the remaining 266
surveys would be returned no later than June 14, 2014.
The self-reporting survey as created was a flawed instrument that, although intended to retrieve
the desired infonnation as ordered by the Court, would ultimately return incomplete and
inconsistent data, and would cause frustration and lead to the need for further inquiries.
As of September 26, 2014, 1408 self-reporting surveys have been received. A total
of
521
individuals have reported access to audio/video recording devices. A total of 100 individuals
reported the use of 142 recording devices from 2007 to the present.·
f
these, 77 devices are
county owned, and 67 are personally owned devices. Currently 991 Posse members have
responded to the survey. The initial slow response from the posse was troubling, but not
unexpected given the voluntary nature
of
the survey instrument. As a result of the flawed
methodology utilized to gain insight into the use of recording devices, the investigatory element
of surprise was lost. t is our belief the methodology failed to produce an accurate accounting of
recording devices that were in use throughout the period in question, as well as the total number
of
actual recordings. The survey period covers any recording devices used for traffic stops from
2007 until present.
The survey failed to capture not only the Manufacturer of the device, but the type of recording
device (i.e.: audio, video, and audio/video). This has hampered the cataloging of reported
devices, and the number of devices inventoried has fluctuated upward, almost weekly.
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To date 121 CDs have been turned in with the survey. MCSO command, believing this inquiry
to be a fishing expedition , has hesitated to initiate a full investigation until each
CD is
reviewed individually and an assessment made
as
to whether any criminal or departmental
violations have occurred. Capt. Holmes, then the Commanding Officer
o
PSB, believed that
only after a violation had been found and documented, should an interview be conducted. As o
this writing, MCSO has received
121
CDs. These CDs contain 2146 videos and all have been
reviewed. Further lieutenant reviews were required
o
30 videos, and these have been completed.
Additionally, there were
14
videos in which the only language spoken was Spanish.
t
is
unknown i these Spanish only videos are included in this number. MCSO has never provided
the Monitoring Team with specific information regarding any o these incidents, the deputies
involved or the types
o
infractions being investigated.
On July
9
2014, Capt. Bailey, who replaced Captain Holmes as commander o PSB, requested
clarification from the Monitoring Team regarding the self-reporting memorandums on traffic
stop audio/video. His request follows:
To
the kfonitor Team,
Regarding the Self-Reporting memorandums on traffic stop audio/video, we are seeking
clarification.
s
we read the Court Order,·
(a)
identify all of its officers, volunteers, and employees both current
and
former
·who
used or
had access to any kind of recording device during trcif.fic stops fi·om2007 forward,· (b) identify
specifically what kinds ofdevices each officer/volunteer/employee
used (e.g. audio, video, dashcam, eyeglass cam, body mount camera, etc.),· when
those devices were acquired;
and
·whether the devices were issued by the JV CSO,
provided
by the officer/volunteer/employee him or herself,
or
hmv the devices
were otherwise acquired or came into use,·
We believe the task at hand is to identifj;, regarding traffic stops, "kinds of devices, when
acquired, and whether they were k CSO issued or personally owned. We would like clarification
that this is indeed the only information we
need
to provide per the Court Order.
Through conversations with 1\lfajor Peters it is the understanding ofmy staff that the kfonitors
are requesting us
to
specifically identify every recording device from 2007
to
current, including
make, model, serial number,
and
i applicable eve1y vehicle number associated to a deputy who
recorded a traffic stop. The Order does not appear to require this level ofspecificity.
s
we have advised you, ·we have found that historically there was no consistency and/or record
keeping for recording devices,· therefore, we are not in a position to readily identify such
specific information as what has been requested by
J\ lajor
Peters (make model
and
serial number
or vehicle information) other than what we have already provided. I believe that our spreadsheet
for the self-reporting memorandums has captured the information that was required by the JV ay
15 Order by identifj;ing who used or had access to the recording devices, the kinds of devices
that were used
and
whether they were personally owned or issued by k CSO. A majority
of
memorandums list specifically ·what kinds
of
devices people
had
access
to
or whether they were
used for trcif.fic stops but not the specific make, model and serial number of each device. s
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such, these memorandums would potentially be considered deficient requiring fi1rther
investigative effort that is not specifically required by the Order. It seems the purpose of the
Order was
to
ascertain the types of devices being used (or able to be accessed) during traffic
stops from 2007
to
present- the additional requirement ofmake, model and serial number does
not appear to be directly relevant
to
this purpose.
Also, with respect to the analysis
of
he data that was requested by the J\;fonitor team, i we were
to
count eve1J1 device, as requested, we would run into an accounting issue due
to
specific
devices being counted multiples times
i
issued or used by multiple personnel from 2007
to
present. We are happy to run the analysis
~ w i t
this caveat, we just vvanted to be sure that is what
you were requesting (that we run it
off
ofthe total number ofdevices identified even if hat might
mean that a device has been counted twice).
Major Peters also requested we specifically identifY each unit/work assignment where personnel
were assigned.
We
have included this information in the current Reformatted Self-Reporting
Survey results spreadsheet.
Please advise whether you believe that identifYing the kind
of
device (as indicated by the "(e.g.
audio, video, dashcam, eyeglass cam, bodymount camera, etc.)
of
the J\;fay 15 Order) with
whatever level ofspecificity was used by the responding person (some indicated just the type of
device, some identified the devices by name, etc.) is insufficient
for
Compliance with paragraphs
(a) and (b), and state whether it is your position that failure to identifY the make, model and
serial number constitutes a deficient response requiring fitrther investigative effort. Once we
have your clarification, we will determine how
to
proceed.
Sincerely,
Captain Steve Bailey
J\ laricopa
County
Sherijf
Office
Commander, Professional Standards Bureau
Clearly MCSO continues to resist seeking specific recording device information
Commander Girvin provided the following advice and direction:
Captain Bailey,
s
I understand it, the topic of capturing make, model, and serial number
for
recording devices
came zp
in
conversation during our last site visit when your spreadsheets were being
discussed J\ lajor Peters asked i
J\ JCSO
was capturing this information, and when he was
informed that it was not being captured, he suggested that it should be, particularly for devices
acquired by J\ JCSO. Jllfost agencies are able to provide this type
of
nformation for property they
acquire. He also suggested that, at a minimum, J\ JCSO would need to capture this information
movingforwardfor any newly acquired devices.
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I'd like
to clariJY
a few issues you raise.
You Wrote,
Through conversations with ~ a j o r Peters it is the understanding ofmy
staff
that the
1Vlonitors are request ing us
to
specifically identifY eve1;1 recording device
fiwn 2 7 to
current,
including make, model, serial number, and
if
applicable every vehicle number associated
to
a
deputy who recorded a traffic stop.
(Emphasis added.) As mentioned above,
1vfajor
Peters suggested that you capture the specific device information. The vehicle information is
actually required under section (c) of the order, which states: (c) identiJY each patrol car that
may have had such a device mounted
in
it
and
the current location of that device and/or patrol
car; Keep
in
mind that the standard
in
the Order
is
used or had access to during a traffic
stop. A recording need not have taken place.
You
wrote,
Also,
with respect
to
the analysis of the data that was requested by the 1vfonitor
team, ifvve were
to
count eve1y device, as requested, we would run into
an
accounting issue due
to
specific devices being counted multiples times
if
issued or used by multiple personnel
fiwn
2 7 to
present. This statement appears
to
contradict itself Please consider Whether you are
counting eve1y device, or you are counting some devices more than once. Your concern appears
to
derive
fiwn
the flawed survey instrument used
in
this process. IdentifYing each device with as
much specificity as possible would eliminate this concern. This
is
also why we emphasized
identifYing which organizational components
had
multiple agency-owned cameras assigned to
it. For example,
if 2
officers working in a unit with
O
agency owned cameras assigned
to
it
claimed access
to
cameras, you could reasonably conclude that these
2
officers were referring
to
these same
1
cameras.
You
would not count the cameras
2
times.
In answer
to
your question, Please advise whether you believe that identiJYing the 'kind'
of
device (as indicated by the
'(e.g.
audio, video, dashcam, eyeglass
cam,
bodymount camera, etc.)'
of the }lfay 15 Order) with
wh tever level
of specificity was
used by
the responding
person
(some indicated just the type
of
device, some identified the devices by name, etc.)
is
insufficient for Compliance with paragraphs
(a)
and
(b),
and state whether it
is
your position
that failure
to
identifY the make, model and serial number constitutes a deficient response
requiring fi1rther investigative effort. (Emphasis added.) The standard cannot be with
whatever level of specificity was used by the responding person .
If
an objective reviewer can
determine 'that a response is deficient, that response is not acceptable simply because
i t
was
submitted as such.
t a minimum, the agency must capture type of device (dashcam, eyeglass
cam,
bodymount,
digital voice recorder, pocket cassette recorder, etc.) and its recording capability (video, audio,
or both). Any other information that
is
readily available
(make,
model, serial number) should be
noted. Please note that simply identiJYing a manufacturer is insufficient, particularly
if
that
manufacturer produces multiple types
of
devices.
Regards,
John
Commander (Ret.) John
M
Girvin
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Deputy jl ;Jonitor
n
addition to the CDs received as a result
of
the self-reporting survey the HSU also turned in 3
binders
of
CDs from their Unit. There are 2203 reported videos on these CDs and MCSO repmis
that all have been reviewed.
Of
those 48 videos were identified for further review by a
lieutenant for potential MCSO policy violations and/or state law violations.
2 PREL JvIINARY FINDINGS
MCSO
to date has not created a plan to address individuals who have not responded to the
survey nor to address those individuals whose surveys have been deemed insufficient. The bulk
of the missing surveys are from the volunteer Posse members. This lack
of
response appears to
be a result
of
the inadequate manner in which MCSO administers and oversees the program.
Anecdotal information leads the Monitoring Team to believe that
if
Posse members were to
respond to MCSO as requested the number
of
surveys would dramatically increase but not
necessarily the number
of
recordings. Posse members have been observed in recordings
presently.
3. RECOJVlivIENDATIONS
MCSO
should be directed to continue to pursue the collection
of
the self-reporting surveys in
spite
of
the flaws with the instrument.
All recordings received with the surveys should be reviewed for policy and/or criminal
violations.
At
this time MCSO claims that this has occurred. Discipline
if
appropriate after the
conclusion
of
the reviews should be dispensed as well. Given MCSO s video collection
methodology the Monitoring Team questions whether anyone would have submitted a recording
of
a bad citizen interaction and the validity
of
any outcomes reported.
During September 2014 the Monitoring Team reviewed a non-scientific sample of the HSU
videos. During these reviews no conduct similar to that observed in the Armendariz video
reviews was noted. Persons stopped were both males and females of various races/ethnicity.
Almost without exception the drivers were asked for their licenses and insurance and were told
the reason for the stop. In many cases records checks were not completed on the drivers and
little
if
any conversation took place with any passengers.
With the number of reviews conducted it was difficult to tell
if
there were any patterns other
than a significant number
of
stops for minor violations with few records checks and almost no
citations. t was not possible to determine from the video segments reviewed
if
deputies were
focusing on some particular types
of
violators or violations. The Monitoring Team expects to
conduct additional reviews once specific inforn1ation is received from MCSO on those identified
as problematic in their review.
During September 2014 the Monitoring Team also reviewed a non-scientific sample
of
the self
reporting videos. Some of the videos were only seconds long others clearly did not contain the
entire contact and still others would not play at all. n the videos that could be reviewed no
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conduct similar to that seen in the Armendariz videos was observed. The Monitoring Team
expects to conduct additional reviews once specific information is received from MCSO on those
identified
as
problematic in their reviews.
The Posse program should receive direct attention and modification, should Posses continue
to
have access to recording equipment. Although the use o citizen volunteers is a generally
accepted and welcomed practice in community policing, there needs
to
be a well-defined
structure governed by policies and procedures, in o