John T. Masterson, Bar #007447 Joseph J. Popolizio, Bar ...docshare01.docshare.tips/files/31403/314039937.pdfJONES, SKELTON & HOCHULI, P.L.C. 40 North Central Avenue, Suite 2700 Phoenix,

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John T. Masterson, Bar #007447Joseph J. Popolizio, Bar #017434Justin M. Ackerman, Bar #030726JONES, SKELTON & HOCHULI, P.L.C.40 North Central Avenue, Suite 2700Phoenix, Arizona 85004Telephone: (602) 263-1700Fax: (602) [email protected]@[email protected]

Attorneys for Defendant Joseph M. Arpaio in his official capacity as Sheriff of Maricopa County, AZ

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, et al.,

Plaintiff,

v.

Joseph M. Arpaio, et al.,

Defendant.

NO. CV 07-02513-PHX-GMS

DEFENDANTS RESPONSIVE MEMORANDUM TO COURT’S FINDINGS OF FACT (DOC. 1677)

Sheriff Joseph M. Arpaio, Chief Deputy Gerard Sheridan, and Lieutenant

Joseph Sousa (“Defendants”) were devastated to read the Court’s Findings of Fact. They

desire to do everything in their power to restore the Court’s and community’s confidence

in them and the Maricopa County Sheriffs’ Office (“MCSO”). In that spirit, they are

committed to working with this Court and the Plaintiffs to fashion remedies that address

the Court’s findings of civil contempt.

To that end, Defendants propose the following remedies, which are

generally described below and are more fully set forth in this responsive memorandum:

Compensation of affected members of the Plaintiff class for violations of the Court’s preliminary injunction.

Sheriff Arpaio and the Chief Deputy, with the Court’s approval, will make a substantial personal contribution to a civil rights organization in Maricopa County committed to

Case 2:07-cv-02513-GMS Document 1687 Filed 05/27/16 Page 1 of 12

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protecting the constitutional and civil rights of the Hispanic Community.

The Chief Deputy will accept the original policy violation findings of Donald Vogel that Chief Michael Olsonpreviously sustained, and accept discipline for those findings pursuant to the disciplinary matrix.

MCSO will institute new IA investigations as identified by the Court’s Findings of Fact.

Vest authority over new IA investigations related to the interests of the Plaintiff class in an independent authority.

Sheriff Arpaio and the Chief Deputy will publicly acknowledge violations of the Court’s Orders.

Revise or draft new policies, including policies relevant to grievance procedures.

Institute appropriate training and supervision as a result of the deficiencies identified in the Court’s Findings of Fact.

Plaintiffs may apply for their reasonable attorneys’ fees for the contempt proceedings.

Defendants have attempted to fashion civil remedies that meaningfully

address all of the concerns and issues identified in the Court’s Findings of Fact. See

Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987). However, in the

event the Court does not find these suggested remedies to be sufficient, Defendants

respectfully request that the Court grant them the opportunity to address the Court’s

concerns by developing remedies that are responsive.

I. COMPENSATION OF MEMBERS OF THE PLAINTIFF CLASS FOR VIOLATIONS OF THE PRELIMINARY INJUNCTION (COUNT I).

Defendants want to compensate members of the Plaintiff class for injuries

that may have occurred as a result of the past failures to take reasonable steps to

implement the Court’s preliminary injunction. [Doc. 1677 at ¶ 879].

A. Defendants proposed remedies in light of the Court’s Findings of Fact related to Count I.

Defendants propose the following remedies in light of the Court’s Findings

of Fact related to Count I.


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1. Sheriff Arpaio and the Chief Deputy will contribute a total of $100,000 to a civil rights organization.

Consistent with Sheriff Arpaio and Chief Deputy Sheridan’s original

commitment prior to the contempt trial, they reiterate that, with the Court’s approval, they

will personally contribute $100,000 to a civil rights organization, acceptable to the Court,

based in Maricopa County, which is committed to protecting the constitutional and civil

rights of the Hispanic community.

2. Joint proposed compensation scheme designed to address the contemnors’ violation of the preliminary injunction.

The parties have worked collaboratively during and after the ongoing

contempt proceedings to draft a combined proposal for notice and compensation to the

Plaintiff class to remedy Sheriff Arpaio’s and the other civil contemnors’ violation of the

Court’s preliminary injunction. Attached is the most recent draft dated May 26, 2016.

[Exhibit A]. The following is a summary of the main provisions of this draft agreement,

which includes appointing an agreed upon, third-party, neutral claims administrator

(BrownGreer), the procedure for notice to potential participants, a claims adjudication

plan, and a compensation scheme:

Individuals detained in violation of the Court’s Preliminary Injunction will be eligible for compensation. [Ex. A at 2].

The appointment of a third-party neutral claims administrator (BrownGreer). [Id. at 1].

This claims administrator will provide notice to the purported victims of the Contemnors’ failure to take reasonable steps to implement the Court’s preliminary injunction. [Id. at 2-3].

Any Claimant who comes forward will be required to complete a basic intake form under oath [id. at 4] that will permit the neutral claims administrator to make a determination on whether the claimant meets the eligibility requirements for participation in the program. [Id. at 4-5].

Eligibility for compensation will be broken into two tracks:A or B. [Id. at 5].

Track A individuals are those who are “prequalified” to receive compensation based on the information contained in the intake form. [Id.].


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Track B individuals are those who do not fit into track A and will be required to establish a prima facie case of a preliminary injunction violation. [Id. at 5-7].

If a claimant meets the prima face case requirements of Track B, MCSO must come forward with competent evidence that casts doubt on one or more of the elements of the claim in a timely fashion. [Id. at 7-8].

Claimants under Track B will also be able to establish eligibility for compensation for additional injuries, such as damages from physical harm and/or severe emotional distress from the detention, lost property, lost wages, and other harms. [Id. at 8-10].

A minimum amount of compensation for detention. [Id. at 12].

The parties are continuing to negotiate in good faith the specific parameters

of the compensation scheme. The remaining areas to be agreed upon include:

The applicable time-span for alleged violations that would be eligible;

Whether remedies apply to traffic stops only as delineated in the Court’s Preliminary Injunction;

Initial budget regarding notice for the outside vendor BrownGreer;

Details of the encounter to include a precise date or a limited range;

What evidence constitutes proof that the encounter was with MCSO;

The time-frame by which MCSO must rebut the claim;

The cap on “additional damages” including emotional distress, lost wages, lost property, and other costs;

The rate of damages for length of detention, and whether the detention includes that by ICE/CBP or MCSO;

The need for a social security number and/or tax documents as it relates to compensation for medical expenses and other compensable damages;

The minimum compensation rate for detention;

Whether the claim documents are public record; and

Whether returned claims that are incomplete or otherwise contained deficiencies can be cured.


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Whether Plaintiffs are entitled to attorneys’ fees for this process.

Sheriff Arpaio and the other civil contemnors reiterate that they are committed to ensuring

that the violations of the Court’s preliminary injunction found in Count I of the Court’s

Findings of Fact are remedied and adequate compensation is paid to the individuals who

come forward.1

B. Maricopa County is taking the position that it might not be liable for remedies based on “willful” or “intentional” behavior.

On May 20, 2016, Maricopa County informed Sheriff Arpaio and the other

civil contemnors that to the extent this Court “imposes measures in this action designed to

remedy willful and/or intentional violations of the court’s orders,” the County may “take

the position that it cannot be found liable for the financial consequences for such

remedies.” [5/20/16 Maricopa County Letter, attached as Exhibit B]. This appears to be

an about-face from the County’s previous position to Plaintiffs that it would indemnify the

Sheriff, regardless of any willful contemptuous conduct found by this Court, for any

remedies ordered by the Court “designed to compensate individuals whose rights were

violated as a result of detentions incident to traffic stops conducted in violation of the

court’s preliminary injunction.” [6/2/15 Maricopa County Letter, attached as Exhibit C].

While the County has not made a final determination on whether it will indemnify Sheriff

Arpaio and the other civil contemnors, Sheriff Arpaio brings this issue to the Court’s

attention because it may affect any potential relief (financial or injunctive) the Court

might order.

In any event, Defendants believe that the County has no legal authority to

deny liability, even if the Court’s remedies are tied to “intentional” findings. The Ninth

Circuit opinion in this case establishes that because Sheriff Arpaio is a defendant only in

1 In the spirit of ensuring adequate compensation to the Plaintiff class, Defendants

also point out to the Court that there might be an issue with providing compensatory financial relief under Count I because the Plaintiff class has been certified only for injunctive relief under Fed. R. Civ. P. 23(b)(2). To the extent any modification of the class is necessary to accomplish compensation, Defendants will assist with any procedure this Court deems necessary.


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his official capacity, the County is the proper party to this action, and therefore, liable for

the remedies ordered by this Court. See Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th

Cir. 2015), cert. denied sub nom. Maricopa County, Ariz. v. Melendres, 136 S. Ct. 799,

193 L. Ed. 2d 711 (2016) (ordering that Maricopa County be substituted as a party in lieu

of MCSO because “an official capacity suit is, in all respects other than name, to be

treated as a suit against the entity.”); United States v. Maricopa, County of, CV-12-00981-

PHX-ROS, 2015 WL 9266969, at *16 (D. Ariz. June 15, 2015) (“Maricopa County is

directly liable for violations resulting from its official policy, which includes policy

promulgated by Arpaio.”); see also Braillard v. Maricopa Cnty., 224 Ariz. 481, 232 P.3d

1263, 1269 (App. 2010) (holding that MCSO is a non-jural entity). Furthermore, the

existence of the County’s insurance or self-insurance does not control the legal issue of

whether the County is the true defendant here; neither does it divest the County of its

underlying liability for the Sheriff’s and MCSO’s actions.

II. PROPOSED REMEDIES RELATED TO MCSO’S INTERNAL AFFAIRSINVESTIGATIONS AND DISCIPLINE (COUNTS 2/3).

A. Chief Deputy Sheridan will accept the previous policy violationfindings.

The Chief Deputy will accept the original policy violation findings of

Donald Vogel that Chief Michael Olson previously sustained (but then overturned

following Chief Sheridan’s name clearing hearing), as outlined in the Court’s Findings of

Fact at paragraph 435. Chief Deputy Sheridan will accept discipline for these findings

pursuant to MCSO’s disciplinary matrix.

B. The Court’s invalidation of previous IA investigations, disciplinary decisions, and/or grievance decisions.

The Court’s Findings of Fact found the following disciplinary and/or

grievance decisions to be insufficient, invalid or void, and suggested that new

investigations and/or discipline for some or all of these subjects should occur:

Vogel Investigation – IA 2014-543. [Doc. 1677 at ¶¶ 405-423; 424-490].


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Olson Investigation – IA 2014-542. [Id. at ¶¶ 405-423; 491-573]

Cisco Perez Investigation – IA 2014-295. [Id. at ¶¶ 603-692]

Cisco Perez Follow Up Investigation - IA 2015-541.[Id. at ¶¶ 693-717]

IA 2015-018. [Id. at ¶¶ 738-747]

IA 2014-021. [Id. at ¶¶ 748-751]

IA 2015-022. [Id. at ¶¶ 752-764]

Mackiewicz investigation.2 [Id. at ¶¶ 766-825]

The Court also suggested that additional investigations should be conducted into new or

previously uninvestigated violations or alleged violations. [Id. at ¶ 904].3 The Sheriff and

the Chief Deputy struggle to provide the Court with a remedy related to the Court’s

invalidation of previous IA investigations because of concerns that opening investigations

that have already been completed might violate Arizona state law.4 However, they are

2 Defendants question the relevance of the Mackiewicz investigation to the interest

of the Plaintiff class and the injunctive relief ordered by this Court. 3 Defendants would like to raise an issue with the Court about its Findings of Fact.

Defendants wish the Court’s injunctive relief to be constitutionally valid. As such, to the extent the Court orders injunctive relief tied to the subjects contained in its Findings of Fact, such relief must be limited to the constitutional violations it has found in this case and the interests of the Plaintiff class. See Melendres v. Arpaio, 784 F.3d 1254, 1267 (9th Cir. 2015), cert. denied sub nom. Maricopa County, Ariz. v. Melendres, 136 S. Ct. 799 (2016) (finding injunctive relief that “broadly requires the Monitor to consider the ‘disciplinary outcomes for any violations of departmental policy’ and to assess whether Deputies are subject to ‘civil suits or criminal charges ... for off-duty conduct’ was not narrowly tailored to addressing the relevant violations of federal law at issue in this action”). Paragraph 904 of the Court’s Findings of Fact, among others, appears to suggest broad remedies that may or may not be narrowly tailored to the interest of the Plaintiff class.

4 Defendants would like to bring to the Court’s attention their concerns about the Arizona Police Officer’s Bill of Rights. See A.R.S. §§ 38-1101-1115. This statutory scheme, in part, ensures that officers receive adequate notice of an internal investigation (A.R.S. § 38-1104(A)), “just cause” for termination (A.R.S. § 1101(7), a requirement that an IA investigation is conducted within 180 days (A.R.S. § 38-1110), and specific appellate rights from a disciplinary decision (A.R.S. §§ 38-1106, -1107).

Defendants are unsure whether invalidating previous IA investigations, disciplinary decisions, and/or grievance decisions by MCSO and instituting new ones in their place would violate the timeliness provisions of A.R.S. § 38-1110(C). Id. (“Failure to conduct an investigation within one hundred eighty calendar days may result in the appeal board dismissing any discipline ordered if it is determined that the employer did not make a


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committed to working with the Court and Plaintiffs to satisfactorily resolve their concerns

so the identified investigations may be addressed to the Court’s satisfaction.

C. Defendants’ proposed reorganization of IA investigations and final decision making authority over MCSO discipline. [¶¶ 903-907].

To address the Court’s concerns regarding the integrity of the Professional

Standards Bureau (“PSB”), Sheriff Arpaio and the Chief Deputy are committed to

ensuring the following re-organization of IA investigations at MCSO:

All PSB investigators have been IA certified, interview trained, and detective certified. All Complaints will be provided directly to PSB, who will then assign an investigator.

Upon completion of the investigation of sworn deputies and the identified civilian counterparts, the investigation will be presented to the Captain over PSB, currently Captain Molina, for findings.

Upon completion of the findings, the packet will be sent to Compliance to complete their quality control check. If there is an identifiable issue that needs PSB attention, the packet will be resubmitted to PSB.

Once approval from Compliance is completed, the packet will then be presented to the Appointed Authority, which will be Chief Holmes.

The Chief Deputy will no longer be involved in the

good faith effort to complete the investigation within one hundred eighty calendar days. A.R.S. § 38-1110(C).”). Likewise, the new investigations outlined in ¶ 904 might run against the 180-day deadline to initiate an investigation of misconduct to the extent MCSO was put on notice that an investigation should occur. See also A.R.S. § 38-1104(A).

Finally, Defendants are unsure whether this Court can invalidate discipline that was imposed on an individual where an appeal was taken, and a final decision was rendered by an Arizona court. See In re Gruntz, 202 F.3d 1074, 1078 (9th Cir. 2000) (“Thus, it follows that federal district courts have no authority to review the final determinations of a state court in judicial proceedings.”) (citation omitted); Dubinka v. Judges of Superior Court of State of Cal. for County of Los Angeles, 23 F.3d 218, 221 (9th Cir. 1994) (“Federal district courts … may not exercise appellate jurisdiction over state court decisions.”); Kelly v. Robinson, 479 U.S. 36, 47 (1986) (federal bankruptcy courts should not invalidate the results of state criminal proceedings); see also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) (federal statutory jurisdiction over direct appeals from state courts lies exclusively in the Supreme Court and is beyond the original jurisdiction of federal courts); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) (the Rooker jurisdictional bar extends to particular claims that are “inextricably intertwined” with those a state court has already decided).


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preliminary findings or the final findings.

The PSB packet with be reviewed by the Appointed Authority regardless of whether PSB makes a sustained or non-sustained finding.

Regarding district investigations, the assigned district investigator will perform the investigation. Once completed, PSB will perform the quality control of all district investigations. Additional sworn personnel have been added to PSB to assist with the increased caseload and quality control with district cases. If the district investigation is not satisfactory, it will be returned to the district for completion.

Further, under previous policies, only the Chief Deputy could initiate a truthfulness investigation/findings. This exclusive authority is eliminated. A truthfulness investigation/findings can be initiated by PSB.

As a final step to the re-organization, a detention Captain and Lieutenant will be added to PSB to deal exclusively with complaints involving detention officers and their identified civilian counter-parts.

To accomplish this re-organization, the following policies will be updated: CP-8, CP-3, CP-5 and GH-2.

In the event an internal investigation relates to the interests of the Plaintiff

class pursuant to paragraphs 905-906 of the Court’s Findings of Fact or if the principal of

the internal investigation is ranked above the appropriate MCSO decision maker, Sheriff

Arpaio suggests the following additional steps:

The appropriate MCSO decision maker will forward his/her determination to an official in an outside agency or qualified individual for an independent review and final determination of discipline. However, termination of any MCSO personnel will remain the soul province of the Sheriff or his MCSO designee.

The outside official’s final determination and any associated discipline will be reported to the Monitor and the Court.

This will occur regardless of whether the IA investigation is sustained or not-sustained.

Finally, pursuant to paragraph 907 of the Court’s Findings of Fact, Sheriff

Arpaio proposes that all investigative and disciplinary authority should be returned to

Sheriff Arpaio and/or his designee after the Court finds MCSO in full compliance with the


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injunctive relief it has ordered.5

III. ACCEPTING RESPONSIBILITY IN A PUBLIC FORUM.

Sheriff Arpaio and the Chief Deputy will appear in a public forum to

acknowledge violations of the Court’s orders. The statement would be videotaped and

disseminated for viewing by members of the public who are unable to attend the forum.

IV. SUGGESTED REVISIONS TO MCSO’S POLICIES AND TRAINING (COUNTS 2/3).

The Court recommended remedies designed to ensure that disclosure

violations would not occur in the future. Sheriff Arpaio agrees with the Court that there

should be a revision or creation of policies and practices in the areas of personnel

supervision, supervisory structure, staffing and training, IA investigations, MCSO

disciplinary policies, MCSO policies related to complaint intake, tracking, and

accountability, and any necessary training and staffing measures designed to implement

these corrective measures. [Doc. 1677 at ¶ 895]. Moreover, Sheriff Arpaio agrees with

the Court that there should be a revision or creation of new IA policies and practices that

address conflicts, bias and appearance of impropriety, hearing procedures that are fair to

the principal and the MCSO, the requirement of an explanation when overturning initial or

5 In the hope that the Court fashions a constitutionally adequate civil remedy for

the violations it has found in its findings, specifically in ¶¶ 905-907 of its Findings of Fact, Defendants wish to note that a court’s exercise of its contempt authority should be tempered by the principle that the least possible power adequate to achieve the end proposed should be used in contempt cases. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987); see also Rizzo v. Goode, 423 U.S. 362 (1976) (noting federalism concerns of federal district courts issuing injunctive relief on state government agencies); see also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“It is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”); City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983) (jurisprudential concerns of “equity, comity and federalism” sharply constrict federal judicial oversight of “state law enforcement authorities.”); id. at 113 (comity counsels in favor of permitting state judiciary systems to oversee state law enforcement practices); O'Shea v. Littleton, 414 U.S. 488, 499 (1974) (same); Coleman v. Espy¸ 986 F.2d 1184, 1190-91 (8th Cir. 1993) (sovereign immunity precludes injunctive relief ordered by federal district court for failure to obey a court order). The overarching federalism concern is particularly manifest here, given that Arizona county sheriffs derive their powers directly from the Arizona Constitution. AZ. CONST., art. XII, §§ 3, 4 (A county sheriff occupies a constitutionally-created, independently-elected county office with “powers . . . as prescribed by law.”); A.R.S. §


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final sustained discipline, and specification of the extent of grievance authority. [Id. at ¶

896]. Finally, Sheriff Arpaio agrees with the promulgation of grievance policies designed

to address conflicts of interest and the ability of PSB to address evidence first presented

by a principal at a name-clearing hearing. [Id. at ¶ 898].

As per the Court’s suggestion, Sheriff Arpaio looks forward to receiving

Plaintiffs’ expert’s suggestions regarding what specific training and policy changes are

required in light of the deficiencies discussed in the Court’s Order. [Id. at ¶ 900]. Sheriff

Arpaio looks forward to discussing these training and policy issues with Plaintiffs, and

plans to avoid further litigation on these issues.

V. ATTORNEYS’ FEES.

As the Supreme Court recognized in Chambers v. NASCO, Inc., 501 U.S.

32, 45 (1991), a court may assess attorneys' fees as a sanction for the “‘willful

disobedience of a court order.’” Id. at 258 (quoting Fleischmann Distilling Corp. v. Maier

Brewing Co., 386 U.S. 714, 71 (1967)). Should the Court order attorneys’ fees to

Plaintiffs, Defendants reserve the right to challenge the reasonableness of the amount of

fees and costs Plaintiffs request.

VI. CONCLUSION.

Defendants have earnestly attempted to provide the Court with remedial

measures that fully address the Court’s findings and concerns, so that this matter can be

concluded. However, Defendants reiterate that, in the event the Court does not find

Defendants’ suggested remedies to be sufficient to fully address the issues identified in its

Findings of Fact, they ask that the Court grant Defendants the opportunity to develop

additional remedies that address the Court’s concerns.6

6 While Defendants are committed to doing everything in their power to assist the

Court and Plaintiffs in resolving this case to everyone’s satisfaction, they do, however, object to the Court’s Order precluding them from challenging the Court’s Findings of Fact. [Doc. 1680]. Defendants are well aware of Fed.R.Civ.P. 52(a)(5) (“A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings.”). However, because Defendants do not know what the final outcome of this case will be, and do not know whether the final outcome will require a previous challenge


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DATED this 27th day of May, 2016.

JONES, SKELTON & HOCHULI, P.L.C.

By /s/John T. MastersonJohn T. MastersonJoseph J. PopolizioJustin M. Ackerman40 North Central Avenue, Suite 2700Phoenix, Arizona 85004Attorneys for Defendant Joseph M. Arpaio and the Maricopa County Sheriff’s Office

CERTIFICATE OF SERVICE

I hereby certify that on this 27th day of May, 2016, 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/Karen Gawel

to the findings, Defendants believe that due process entitles them to the opportunity and time to raise all such challenges now, as might be necessary to preserve any appellate rights they might later need to assert.


EXHIBIT A

Case 2:07-cv-02513-GMS Document 1687-1 Filed 05/27/16 Page 1 of 19

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Red – Plaintiffs’ Proposal, Defendants Do Not Agree Blue – Defendants’ Proposal, Plaintiffs Do Not Agree

May 26, 2016

Draft Combined Proposal for Notice and Compensation Methodology I. Third-Party, Neutral Claims Administrator

A. The Court will designate the firm of BrownGreer to serve as a neutral, third-party administrator to manage the Notice and Claims Processing Plan to compensate individuals who suffered injury as a result of any violations by the MCSO of the Court’s December 23, 2011 Preliminary Injunction Order.

B. BrownGreer’s fees will be paid by Defendants.

II. Eligibility

A. Participation in this scheme for victim compensation is voluntary and is intended as an alternative for eligible individuals to any other means available for obtaining relief for injuries resulting from alleged violations of the Court’s Preliminary Injunction. Claimants who submit claims and are determined to be eligible to participate in the plan will waive and extinguish any right they might otherwise have to obtain relief for the same conduct through any other avenue. The rights of any individual who does not participate in the compensation plan will not be affected.

B. Individuals who have submitted a claim regarding the same conduct in

another forum and received a determination, or those who have a pending claim in another forum, are not eligible to participate in this program. If the individual has a pending claim in another forum, he or she must withdraw such a claim in order to participate in this alternative compensation scheme. As with all other individuals who choose to seek remedies through this compensation scheme, those who withdraw a claim pending in another forum in order to submit an application under this scheme will be required to waive and extinguish any right they might otherwise have to obtain relief for the same conduct through any other avenue.

C. Compensation under this program will be available to those asserting that

their constitutional rights were violated as a result of detention by MCSO


Tab 5

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in violation of the Court’s Preliminary Injunction from December 23, 2011 to the present May 24, 2013.

D. Individuals detained in violation of the Court’s Preliminary Injunction will

be eligible for compensation, whether detained during traffic stops or otherwise. Eligibility for remedies under this scheme should be limited to those who can show they were detained in violation of the Court’s Preliminary Injunction in the context of a traffic stop.

III. Compensation Fund The Board of Supervisors will create a fund of $500,000 for payment of claims adjudicated in favor of claimants. In the event that amount is exhausted through the payment of claims and is insufficient to provide compensation to all successful claimants, additional claims adjudicated in favor of claimants will be honored and timely paid by the County through further allocations if necessary. If all claims adjudicated in favor of claimants are fully paid out and there remains an unspent sum in the originally or any supplementally allocated funds, such amount would revert to the County. IV. Notice Plan

A. BrownGreer would be provided with a budget of $200,000 $100,000 to spend on notice and outreach to potentially eligible individuals about the availability of compensation. BrownGreer will utilize its expertise to determine how monies allocated for notice can most effectively be employed to maximize the likelihood that potential claimants will be reached.

A. The notice plan may include use of radio, digital/online and print advertising, earned media placements, and partnership with non-governmental organizations and embassies. It should target individuals in at least Maricopa County, along the U.S./Mexico Border and in Mexico. Notice will be provided in English and Spanish, with a heavy focus on Spanish-language media and sites.

B. BrownGreer will consult with the Parties in the development of the notice plan and the text of any notices, press releases or scripts developed. The cost for any such services will be paid out of the notice budget provided for in IV.A. above.

C. BrownGreer will develop a claim website for the case, a toll-free phone number and an email account, to provide information about how to make a claim. The cost for any such services will be paid out of the notice budget provided for in IV.A. above.

D. Individual notice will be provided to any individuals identified by the Parties as potentially eligible for compensation for whom a current address


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can be found, i.e., through commercially available database services, and other methods. All costs for such services will be paid out of the notice budget provided for in IV.A above.

V. Claims Adjudication Plan

A. Claims must be initiated within 365 days from the first issuance of program notice by Brown Greer through any public media outlet (which will also be the date when Brown Greer will be ready to begin receiving applications).

B. BrownGreer will be provided a sum of $75,000 in start-up fees to implement the claims processing program.

C. All materials must be available in English and Spanish, and any other languages as needed. Language should be calculated to be understandable to individuals who will be making claims.

D. In all cases, it is claimant’s burden to establish their entitlement to compensation by a preponderance of the evidence. BrownGreer will be responsible for evaluating the credibility and competency of evidence and witnesses, and determining the appropriate weight to be assigned to evidence adduced.

E. The Parties recognize that available documentation and testimony may already establish a case that some individuals were subject to violations of the Preliminary Injunction. Thus, a multi-step and multi-track system is proposed to ensure that the burden on claimants for whom such uncontested evidence exists is reduced and the resources committed to this program are used efficiently.

F. Claim Initiation Form. Claimants will first be required to complete a claim initiation form. This form would ask for the following basic information:

1. Contact information: current address and phone number where individual can be reached

2. Identity information: name, name provided to MCSO (if different), DOB and reliable proof of identity

3. Details of encounter: date in the applicable time period (or approximate (i.e., 30 days) a five-day date range if precise date is unknown), type of encounter (traffic stop, other)

4. Approximate length of detention by MCSO. (In cases involving transfer to ICE/CBP, claimant to provide length of detention up until release to ICE/CBP custody)


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5. Whether claimant will request compensation for additional harms listed in Section V.J.5.a below (using check boxes)

6. The form will be signed under oath. Claimants will also sign an acknowledgement and agreement that participation in this program, extinguishes all other rights they may have to pursue claims based upon the same conduct by MCSO.

7. The form will provide claimants with notice as to their confidentiality rights under the program, including any exceptions to confidentiality, e.g., what and with whom information may be shared and for what purpose.

8. The form will also state that claimants are responsible for any tax reporting responsibilities that arise out of receiving compensation through this mechanism.

G. Track Determination. Within 21 days after a Claim Initiation Form is filed, BrownGreer will make a determination as to whether the claimant meets the eligibility requirements for participation in the program and, if so, what Track (A or B) his or her claim will fall under. BrownGreer will send any claimants determined not to be eligible for the program a Notice of Ineligibility, and a follow-up form to eligible claimants and information as appropriate.

1. Counsel for the Parties will agree in advance on the list of prequalified candidates and provide these names and related information to BrownGreer.

2. If BrownGreer determines, based on the information in the claim initiation form, that the person is not eligible to participate in the program, e.g., because s/he was detained outside the eligible period or the conduct complained of is outside the scope of this case, then BrownGreer will inform the individual in writing that no rights that the individual may have to pursue relief through other avenues has been extinguished.

H. Track A. These individuals are “prequalified” to receive compensation and will be awarded the minimum amount as set forth in Section VI.A, unless they are requesting compensation for additional harms. The information provided in the Claim Initiation Form will be deemed to have met those claimants’ burden, except as to any claim for any harms other than for the detention itself. Individuals whose claims would otherwise be assigned to Track A, but who are seeking compensation for any such additional harms shall be assigned to Track B.

1. Prequalified claimants include any person identified in HSU spreadsheets as having been detained in the context of a traffic


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stop, not arrested on suspicion of conduct in violation of criminal law, and transferred to ICE/CBP in the applicable time period, as well as any other individuals that counsel for Parties can agree appear to have been subject to violations of the Preliminary Injunction based on available documentation, including MCSO incident reports, CAD data and records from the U.S. Department of Homeland Security (DHS).

2. BrownGreer will process claims for only those prequalified claimants who complete and submit a Claim Initiation Form.

3. BrownGreer will be provided an amount yet to be determined per claim for processing claims in Track A.

I. Track B. All individuals who do not fit into Track A will be placed in Track B. BrownGreer will send them follow-up claim forms and information necessary to gather the information in Section III.J below.

1. Claimants will be provided with contact information for Plaintiffs’ counsel and 30 days to complete forms and submit supporting documentation.

2. BrownGreer will be provided an amount yet to be determined per claim for processing claims in Track B.

J. Burden of Proof for Individuals in Track B.

1. BrownGreer must be persuaded that a claimant has shown an entitlement to some portion or all of the compensation claimed with credible and competent evidence, including that s/he was detained in violation of the Preliminary Injunction, the length of the detention, and the fact, nature, and extent of any additional compensable injury. A claimant’s statement, made under oath, shall be considered admissible evidence.

2. Establishing a prima facie case of a preliminary injunction violation. In order to establish eligibility for compensation because the claimant was detained in violation of the Preliminary Injunction in the relevant date range and shift the burden to the MCSO to rebut the claimant’s prima facie case, the claimant must provide the following information under oath:

a. Identity information: name, name provided to MCSO (if different), DOB and reliable proof of identity

b. Details of encounter: date (or an approximate (i.e., 30 days) a five-day date range if precise date is unknown), type of encounter (traffic stop, other)


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c. Approximate location of encounter with officer(s) (e.g., Highway 89, approximately 3 miles north of Fountain Hills)

d. Reason given by MCSO officer(s) for detention (if any)

e. Evidence that MCSO suspected unlawful presence, e.g., questioning about immigration status, ICE/CBP inquiry or turned over to ICE/CBP, including details about what happened, e.g., if ICE/CBP came to site of detention or MCSO transferred claimant to ICE/CBP

f. Approximate length of detention by MCSO (in cases involving transfer to ICE/CBP, claimant to provide length of detention up until release to ICE/CBP custody)

g. Whether claimant was arrested

h. Testimony or other evidence that the detaining agency s/he encountered was MCSO, e.g., presence of an MCSO marked patrol vehicle, description of the uniform officer was wearing, etc.

3. Additional buttressing information for Track B claimants (helpful, not required, but may be considered in weighing PFC elements to determine whether the required elements have been established)

a. Name/badge number of MCSO officer(s) initiating encounter

b. Physical description of MCSO officer(s) present at the encounter

c. If encounter was initiated as a traffic stop, the name of the driver and/or owner of the vehicle stopped, license plate number of vehicle stopped, and/or description of vehicle (e.g., blue 1999 Chevrolet van)

d. Any documentation pertaining to encounter with MCSO officers and / or the claimant’s detention

e. Identification documentation that was provided to MCSO at the time of the encounter, if it still exists

f. Sworn statements of witnesses to the events described by claimant

4. If a claim form is returned to BrownGreer and appears incomplete, BrownGreer will return the form to the claimant with instructions


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to correct the deficiency and return the form in 30 days. If the form remains incomplete at that point, BrownGreer will evaluate it “as is.”

5. MCSO’s Burden to Rebut PFC for Track B Claimants

a. If claimant meets the PFC threshold, MCSO must come forward with credible, competent evidence that casts doubt on one or more elements of the claim within 30 120 days of receiving access to a complete file from BrownGreer. Should MCSO require additional time, they may make an application to BrownGreer to have an additional 90 days (up to 120 days total), which BrownGreer will grant provided it is for a reasonable reason (i.e., high volume of claims).

b. Examples of evidence that can satisfy MCSO’s burden to come forward with rebuttal evidence include:

i. Attestation that MCSO has no record of the encounter alleged by claimant in cases where the MCSO would otherwise have such records

ii. Testimonial or other evidence that encounter alleged by claimant did not occur

iii. Documentation showing that claimant’s encounter with MCSO officers was, in some significant way, other than as represented by claimant.

iv. Testimonial or other evidence that the length of detention was not as represented by claimant

c. In any cases where MCSO opts to rebut a case, notice and a copy of what MCSO submits will be provided to the claimant if he or she is not represented by counsel, or any counsel who has entered an appearance and is representing the claimant with respect to his or her claim. Claimants and, where applicable, his or her counsel will have 30 120 days to respond, but may request an extension of 90 days, for a total of 120 days if BrownGreer deems the request reasonable.

6. Establishing eligibility for compensation for additional injury

a. BrownGreer will consider evidence of the following additional injuries in determining the final award amount (from Plaintiffs’ last proposal):


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i. Damages arising out of physical harm and/or severe emotional distress that was proximately caused by the detention (up to a cumulative limit for all such damages for emotional distress of $7,500), including, but not limited to –

(a) Ongoing physical harm that occurred as a result of detention and pain and suffering, if any, arising directly out of the physical injury sustained by the claimant

(b) Medical bills paid or other out of pocket costs that arose as a result of physical/emotional harm caused by detention

(c) Severe emotional distress that occurred as a result of detention and associated costs, if the claimant can establish by credible and competent evidence physical manifestation and the need for treatment (i.e., claimant suffered shock or mental anguish manifested by a physical injury)

ii. Lost Property - value of property confiscated and expenses incurred as a result of the confiscation and in trying to get it back (up to a cumulative limit for all such losses of $5,000)

1. Car impounded - loss of time / money in getting car back

2. Money taken

3. Credit / debit cards taken

4. Identification taken - loss of time / money in getting legitimate and lawful identification returned or replaced (not including driver’s licenses seized because suspended)

5. Other items

iii. Detention (and length of detention) by ICE/CBP that was proximately caused by MCSO ($500 for first hour, or any portion thereof, of detention after first 20 minutes; plus $35 for each additional segment of 20 minutes, or any portion thereof, up to a maximum cumulative total of $2,915)


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iv. Lost wages, foregone employment opportunities or loss of job (with recovery limited to the lesser of 30 days of documented lost wages or $7,500)

1. Dollar amount of wages lost (up to 30-day/$7,500 limit) as a result of being detained (must be supported by pertinent documentation, e.g., pay stubs from pre-detention employment)

2. Other costs associated with lost job, e.g., days spent trying to find new job for which claimant can show he or she was legally eligible ($200/day up to a maximum of $1,000)

v. Other provable harms (up to a cumulative maximum of $2,500)

1. E.g., if claimant personally incurred and paid legal fees, or lost housing / had to find other houses as a result of detention and associated expenses

(c) The absence of documentation of out of pocket costs will not automatically disqualify an individual from receiving compensation for that injury if there is a reasonable explanation for the absence and alternative corroborating evidence, such as affidavits from individuals with direct personal knowledge about the relevant issue (such as treating medical providers) other than the claimant.

(d) A Social Security number (or other government identification number) will be requested of all claimants to process a claim for compensation to permit BrownGreer to ensure claim integrity. Claim forms shall state prominently that a Social Security number is not required in order to receive compensation; however, if a person who has a Social Security Number or Resident Alien Number is requesting compensation for out of pocket medical expenses, that number must be reported to receive that part of the compensation claim. Government identification numbers will be excised from all documents provided to the parties, except in cases where the individual is claiming compensation for out of pocket medical expenses. In such a case, a government identification number will be provided.

(e) BrownGreer will be responsible for determining whether any tax documentation is required to be issued in conjunction with paying out claims, and be responsible for issuing such


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document that may be necessary for Maricopa County as the payor (i.e., 1099s, W2s).

7. Interviewing Track B claimants and other witnesses

a. Either claimant or MCSO may demand the right to have BrownGreer question witnesses in any case in which the credibility and/or bias of one or more witnesses may be in issue. The party requesting such an interview shall be required to provide compensation for the BG staff member conducting the interview at the rate of $___/ hour for the time spent in the interview and for up to two (s) hours of preparation time. Either party may, but is not required to, submit questions to be asked of the witness(es) in such interviews. Both parties and Plaintiffs’ class counsel may be present at such interviews. Claimant will be given notice if he or she or their witness are to be interviewed, and may be represented by Plaintiffs’ counsel or their own representative. For witnesses not in Maricopa County, efforts will be made to accommodate their interview, such as interviews by Skype or other video conference technology.

b. Interviews will be limited to 30 minutes, and both parties may submit questions to BrownGreer to ask, although BrownGreer has the authority to ask additional questions to enable them to determine the veracity of the claims.

VI. Minimum Compensation for Detention

A. Claimants will be awarded a base amount of $1500 $500 for detention lasting up to one hour, if the individual is detained past 20 minutes. Claimants will be awarded an additional base amount of $1000 $35 for each additional 20 minute segment of detention thereafter (or any portion thereof), up to a cumulative maximum for any detention of $2915.

B. These base amounts are in addition to any compensation that BrownGreer may award for additional injury under Section V.J.5.a.

VII. No Appeal. Any party will have the ability to request reconsideration of BrownGreer’s decision by BrownGreer, but otherwise have no right of appeal.

VIII. Award Disbursement. Defendants will set up an account to which BrownGreer would have access for the purpose of paying out claims adjudicated in favor of claimants, with at least monthly accounting to the County showing all disbursements made.

IX. Confidentiality. A protective order will be sought to maintain the confidentiality of personal and/or private information of claimants and other individuals


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mentioned in or who submit evidence in support of claimants’ applications, as well as confidential documents from the U.S. Department of Homeland Security (DHS) and its components. Claim forms, with personal information (home addresses, telephone numbers, email addresses, Social Security numbers) redacted, along with the amount paid to successful claimants, are subject to disclosure pursuant to Arizona’s public records laws. Defendants cannot guarantee, however, that other information in claimants’ case files will not be required to be disclosed to someone who successfully sues for that information.

X. Program Reporting. BrownGreer will create an online reporting portal where the parties can access claim tracking and processing information, including processing times, and create downloadable reports. BrownGreer will also be available to directly provide any reports to the Court, if necessary, at no additional cost.

XI. Attorneys’ Fees. If claimant successfully pursues compensation through the use of an attorney, that attorney will be entitled to fees, not to exceed $750, and not more than the amount the claim award. A major purpose of this optional process is to make it sufficiently user-friendly that claimants can realistically determine in many cases that they do not need to be represented by counsel. If they nevertheless decide to retain counsel to advise and/or represent them in this process, they should also assume the responsibility for paying the fees of such counsel.


EXHIBIT B





EXHIBIT C




Documents

John T. Masterson, Bar #007447 Joseph J. Popolizio, Bar ...docshare01.docshare.tips/files/31403/314039937.pdfJONES, SKELTON & HOCHULI, P.L.C. 40 North Central Avenue, Suite 2700 Phoenix,