Melendres v. Arpaio #1505 Oct 29 2015 TRANSCRIPT - DAY 17 Evidentiary Hearing

8/20/2019 Melendres v. Arpaio #1505 Oct 29 2015 TRANSCRIPT - DAY 17 Evidentiary Hearing

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3971

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

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No. CV 07-2513-PHX-GMS

Phoenix, Arizona

October 29, 2015

9:06 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 17, Pages 3971-4063)

Court Reporter: Gary Moll

401 W. Washington Street, SPC #38

Phoenix, Arizona 85003(602) 322-7263

Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription


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Melendres v. Arpaio, 10/29/15 Evidentiary Hearing 3973

A P P E A R A N C E S

For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PC

By: Terrence P. Woods, Esq.P.O. Box 20527Phoenix, Arizona 85036

For the Intervenor United States of America:U.S. Department of Justice - Civil Rights Division

By: Paul Killebrew, Esq.

950 Pennsylvania Avenue NW, 5th Floor

Washington, D.C. 20530

U.S. Department of Justice - Civil Rights Division

By: Cynthia Coe, Esq.601 D. Street NW, #5011Washington, D.C. 20004

For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLPBy: M. Craig Murdy, Esq.

2929 N. Central Avenue, Suite 1700

Phoenix, Arizona 85012

Also present:

Sheriff Joseph M. Arpaio

Executive Chief Brian SandsLieutenant Joseph Sousa


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I N D E X

Witness: Page

STEVE BAILEY

Cross-Examination Continued by Mr. Masterson 3978Redirect Examination by Ms. Wang 4022Examination by the Court 4045

E X H I B I T S

No. Description Admitted

2851 Spreadsheet of traffic stops (1 of 2) 4056(MELC413860)

2852 Spreadsheet of traffic stops (2 of 2) 4056

(MELC413861)

2853 HSU 2011 Master Log 4056



2944 CEU Master Log, native file 4056

(MELC1435255 - MELC1435433)


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P R O C E E D I N G S

THE COURT: Please be seated.

THE CLERK: This is CV-07-2513, Melendres, et al., v.

Arpaio, et al., on for continued evidentiary hearing.

Counsel, please announce your appearance.

MS. WANG: Good morning, Your Honor. Cecillia Wang

and Andre Segura for the plaintiffs.

THE COURT: Good morning.

MR. YOUNG: Good morning, Your Honor. Stanley Young,

Michelle Morin, Covington & Burling, for plaintiffs.


MR. KILLEBREW: Good morning, Your Honor. Paul

Killebrew and Cynthia Coe for the United States.


MR. MASTERSON: Good morning, Judge. John Masterson,

Joe Popolizio, for Sheriff Arpaio and the individual

contemnors, and with us is Holly McGee.


MR. WALKER: Good morning, Your Honor. Richard Walker

on behalf of Maricopa County.


MR. WOODS: Good morning, Your Honor. Terry Woods on

behalf of nonparties Stutz and Liddy.

MR. McDONALD: Good morning, Your Honor.


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Mel McDonald on behalf of Sheriff Joe Arpaio, special

appearance.


MR. MURDY: Good morning, Your Honor. Craig Murdy on

behalf of retired Chief Brian Sands.

MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and the alleged nonparty

contemnors.

THE COURT: Mr. Masterson, were you able to stipulate

to any exhibits today?

MR. MASTERSON: The short answer is no.

THE COURT: Okay.

MR. MASTERSON: But -- and I told Ms. Wang last night

that it's not my intention to -- I don't make people bring down

custodians of records to say: This is a Maricopa County

Sheriff's Office record. It was kept in the regular course,

et cetera, et cetera. I don't intend to do that.

My objections are document specific as to relevance

and Rule 403. And if the Court wishes, I can tell you the

reasons now or we can take that up later.

THE COURT: Why don't we just take that up at the end

of the testimony --

MR. MASTERSON: Okay.

THE COURT: -- and then I can better understand the

context in light of the whole testimony today.


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MR. MASTERSON: But as far as making Ms. Wang or the

plaintiffs bring in some employee of MCSO to lay the

foundational basis for the records, I'm not going to require

that. That's not my objection.

THE COURT: All right. In other words, you're going

to state objections, and then if I overrule the objections

you'll stipulate to the admission with the preservation of your

objection?

MR. MASTERSON: Yes, sir.

THE COURT: Okay.

We had Exhibit 2943 admitted yesterday. It was a list

of Armendariz spin-off investigations. I was disinclined to

have the whole exhibit be under seal, but recognize that you

might have continuing -- ongoing investigations that you wanted

to redact, that you were going to do that.

MR. MASTERSON: I was going to do that, Judge. What I

did was I talked to Captain Bailey about it. Unfortunately,

Captain Bailey told me I needed to talk to Captain Molina about

that. So I have not yet been able to do that, but what I was

going to do is at the lunch break, or it's possible we'll even

be done today by lunch -- anyway, go over and talk to Captain

Molina and see if I can get the necessary information on those,

and then I can provide that to the Court and counsel as soon as

I have it.

THE COURT: All right. Then are you ready? Is there


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Bailey - CX Masterson, 10/29/15 Melendres v. Arpaio 3978

anything else that we need to raise before we resume

cross-examination of Captain Bailey?

MS. WANG: Not from plaintiffs, Your Honor.

THE COURT: All right.

STEVE BAILEY,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

CROSS-EXAMINATION CONTINUED

BY MR. MASTERSON:

Q. Good morning, Captain Bailey.

A. Good morning.

Q. Yesterday, after a bit we got you up to an assignment in

PSB. Do you remember that?

A. Yes, sir.

Q. Okay. So I'm going to start there this morning.

Could you tell me what your duties and

responsibilities were as a captain at PSB?

A. Primarily, oversee the pace and the direction of PSB cases

to ensure that they were done appropriately and in a timely

manner.

Q. What do you mean by "pace"?

A. On the administrative side, there's a time line of 180 days

in which the cases have to be completed, and it's something

that we're always mindful of in terms of finishing the case

thoroughly, but within the time frames.


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Q. How was it you got to be assigned to PSB?

A. Chief deputy called me into his office one day and told me

he was transferring me to PSB.

Q. Now, when you were discussing this with Ms. Wang a couple

weeks ago, I think you told us that Chief Sheridan wanted it to

move faster and in bigger chunks, is that correct?

A. I did say that.

Q. Why? I mean, explain that to me, please.

A. I think the chief realized that the Armendariz case was

going to be voluminous, and there was going to be a number of

things that were necessary to reconcile all the issues coming

out of Armendariz. I think he didn't feel like it was moving

at a pace that he thought was appropriate, and my experience in

complex and long-term investigations is what he cited as the

reason to put me in PSB.

Q. Was it your intention to do a fast, lousy job?

A. Absolutely not.

Q. Did you intend to conduct thorough investigations on all

the spin-off investigations --

MS. WANG: Objection, leading.

Q. -- connected with Armendariz?

MR. KILLEBREW: Join.

THE COURT: Sustained.

BY MR. MASTERSON:

Q. How many spin-off -- if you know, how many spin-off


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investigations were conducted with the Armendariz matter?

A. I don't know. A lot.

Q. I mean, are we talking dozens? Are we talking hundreds?

Do you know?

A. Couple dozen, at least.

Q. Okay. And you just told us you wanted to move fast, is

that accurate?

A. That's what I said. I don't know how it was ultimately

characterized, but the pace of that investigation needed to be

accelerated.

Q. Did you assign the various investigations to specific

people, or did you leave that up to the staff of PSB?

A. I assigned them.

Q. How did you go about assigning them?

A. The primary case agent on Armendariz was Sergeant Steve

Fax, and many members of PSB assisted him, but he was the

primary case agent that oversaw all of the cases.

Q. What were your expectations on the case officers with

respect to the Armendariz investigations?

A. I selected Sergeant Fax because of his experience, and I

knew he would be well organized and do a thorough job, which he

did. My expectation was that every viable lead be investigated

and explained as it came out of Armendariz, or the activities

of former Deputy Charley Armendariz.

Q. Tell me about Sergeant Fax's experience.


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A. His primary experience in the office has been in

investigations, including homicide, violent crimes, general

investigations.

THE COURT: Let me just ask: Are you talking about

his experience before he came to PSB?

THE WITNESS: Yes, sir.

THE COURT: Okay. Thank you. I just want to make

that clear.

Thank you, Mr. Masterson.

BY MR. MASTERSON:

Q. Can you give me any idea of the number of IAs that are --

that go through PSB every year? And -- well, I'll tell you

what. Let's break it down.

The year you got there, do you know how --

approximately how many IAs were going to go through PSB?

A. I remember having a discussion with the administrative

staff that in 2013 there was about 100 IA numbers pulled, in

2014 there was approximately 450, and the day I left there was

633 IA numbers pulled for investigation.

Q. So between 2013 and 2015, more than six times the number?

A. Yes, sir.

Q. Do you have any explanation as to why that occurred?

A. Yes. Due to policy changes, and what I described earlier

as a cultural shift in the agency, every complaint was to be

given an IA number and investigated to its end. Certain


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categories of offenses were now mandatory to investigate, so it

created a huge increase in IA numbers being pulled.

Q. What do you mean by "cultural change"?

A. At the direction the chief deputy and the sheriff, there

were certain changes that were implemented to maybe address

some past shortcomings in the office in terms of internal

investigations, and how it would ensure that staff was more

accountable.

Q. Did you make changes to PSB while you were a captain at

PSB?

A. Yes, I did.

Q. What changes did you make?

A. One of the primary changes I made was how we briefed cases

with the chief deputy. Traditionally, it was the commander of

PSB only that would brief the cases with him, and I changed it

to more of a committee-style briefing where the investigator,

the investigator's sergeant, and the administrative lieutenant,

along with myself, would brief the case with the chief deputy,

or several cases at a time with the chief deputy.

Q. Why did you do that?

A. I thought it was a more thorough briefing, so the chief

could understand all the complexities or subtleties of the

case. And it gave him a clear understanding of everything in

the case, as opposed to me getting a briefing from the case

agent and trying to do the case justice by telling him all the


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details of the investigation.

Q. What other changes did you make to PSB while you were

there?

A. As a result of Armendariz and a lot of things we went

through, before I left we had put together an educational

component that was to be taught to all supervisors in the

office in terms of how to conduct an Internal Affairs or

PSB-type investigation, so we could gain some consistency

throughout the office and have similar expectations between

districts and divisions and PSB on how cases would be handled.

Q. Do you recall what exactly that educational component

consisted of?

A. Yes. It was -- I don't know what it's turned into since I

left, but it was a one-day -- it was planned to be a one-day

instructional course. The chiefs of their respective bureaus

were going to give us a list of people they wanted trained

first that would be responsible for those investigations. And

it was -- it was designed to be a detailed instructional course

on how to deal with the various complexity: If this happens,

do this; if you come across this, do this. And it was

constructed by members of PSB.

Q. Do you know, was that to be an E-Learning type situation,

or how was that going to work, do you know?

A. I explained to the chief deputy I didn't think E-Learning

was appropriate on this particular course, that we should do it


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in a more traditional classroom setting so people could ask

questions and we could answer individual questions about what

they were experiencing in the field.

Q. Do you know whether that educational component has been

implemented at this time?

A. I don't.

MS. WANG: Objection, foundation.

THE COURT: I'm going to allow the question because he

only asked him if he knew.

BY MR. MASTERSON:

Q. Do you know?

A. Not since I left, I don't know what has happened to it.

Q. Okay. Now, you mentioned a couple minutes ago that I think

one of the changes -- well, let me stop myself.

Are there any other changes you implemented we haven't

already discussed, while you were at PSB?

A. We changed the format of the case investigations upon my

arrival. Myself and primarily Sergeant Bocchino realized that

the format the cases were written in were very redundant and

took unnecessary time, so we changed the format. Sergeant

Bocchino came up with it, and it seemed to go over well with

the investigators. And off the top of my head, I can't think

of the other changes we made.

Q. Okay. What I was going to ask you just a second ago was

the change to pulling an IA number for every -- every matter,


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every complaint, I guess, was that in place when you got there

or was that a change you implemented? How did that work?

A. That was a change in policy that I was expected to adhere

to, and I think it started shortly after I arrived.

Q. Did you adhere to that policy?

A. Yes, sir.

Q. Explain the policy.

A. So in the past, if, for example, a complaint came in to a

sergeant at a patrol district, based on the complaint he may

have the discretion on whether to consider it a legitimate or

serious complaint that required an investigation. With the

switch in policy, it is now required that the supervisor or the

person taking the complaint take an IA number and the matter's

investigated, both externally and internally.

THE COURT: Can you give me just a second? I want to

review that, just so I make sure I understand it.

MR. MASTERSON: Sure.

(Pause in proceedings.)

THE COURT: Thank you.

BY MR. MASTERSON:

Q. When you use the phrase "every complaint now gets an IA

number," what do you mean by "every complaint"?

A. Every complaint received by the agency, whether it's via

the Internet, a phone call, in person, third party, whatever

the case is, if it's a complaint on an employee in the Maricopa


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County Sheriff's Office, we take an IA number and investigate

it to its end.

Q. What about a situation -- well, let me ask you a prefatory

question first. Is every complaint investigated by PSB?

A. No.

Q. Tell me how that works.

A. Generally, for a case to be accepted by PSB, we have to

have some inclination or belief that it could result in

demotion, dismissal, termination, or suspension.

Q. And if PSB does not handle the complaint, what happens to

the complaint?

A. It's assigned to the district or division that the

complaint was generated from.

Q. So are you telling me that if it's -- if major discipline

is contemplated, it's PSB; if it's lesser discipline, it's

division?

A. Yes.

Q. Are there certain situations where regardless of the

discipline, it could be, or should be, handled by PSB?

A. To some degree, it's at the discretion of the PSB commander

or the chief deputy.

Q. Now, how is the PSB commander, the chief deputy, going to

know what the complaint's about so a decision could be made:

Should we put this at division or should this come to PSB?

A. Typically, the division or district commander will call


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myself or one of the lieutenants and explain that a complaint

came in. And they may ask us if this is something that should

go to PSB or if it should be handled at the district division

level, and we would give that consultation and a decision would

be made.

Q. Okay, I'm not sure I understand. Is there some sort of

briefing that takes place, or --

A. Sometimes they'll come down to the division to talk to us,

or it might be a phone call or an e-mail, some communication

like that.

Q. Okay. I think I need -- what I need to know, then, is I

want you to give me an example. Let's say I call up MCSO and I

make a complaint, and I say: Deputy Jones was rude to me on a

traffic stop yesterday.

What happens? Who does that go through? Tell us how

it moves along through the system.

A. I'll give you the best example I can. A rudeness complaint

would probably be taken by the district or division if it was

just a matter of the deputy not being professional.

If the allegation turned to that the deputy

inappropriately struck or physically handled the person

inappropriately, that would come to PSB, because that could

result in serious discipline.

At the inception of the complaint, the supervisor will

put it in IAPro, a number's given, and the case would be


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assigned to a supervisor, and the subsequent investigation

would start at that point.

Q. Okay. So I make the call, and let's use your example, it's

a claim of excessive force. I assume -- well, who can take the

call at MCSO if I'm the guy calling in saying I want to file a

complaint?

A. By policy, anybody.

Q. And then -- well, let's say I look at the MCSO website, and

it's been so long since I looked at it, I don't know. Maybe

I've got Sheriff Arpaio's phone number up there. If I call,

what happens?

A. There's either an automated line or somebody physically

answers some of the lines and will take a complaint. There's

also a -- a spot on the Internet on the actual web page where

you can write in a complaint to the agency.

Q. Okay. And then after that occurs, then it starts the

process that you just described?

A. Yes.

Q. Okay. Is there any form of audit process of PSB that

happens regularly?

A. Yes, there is.

Q. How does that work?

A. For the districts and divisions, every month a list is

pulled by the administrative staff that shows what numbers are

still active, what IA numbers are still active in the various


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districts and divisions, and what the time frame is left on the

case. That is then sent to the district commander so he's

aware of what numbers he's responsible for in his district or

division.

Q. Okay. What happens then?

A. They're expected to make sure that they come in under the

time frames and the investigation is done in a timely manner.

Q. Who follows up on that to make sure those things happen?

A. PSB commander, one of their lieutenants, and the division

commander that's responsible for those cases.

Q. Okay. Does BIO get involved in any sort of audits of PSB,

or even the divisions, with respect to IA complaints?

A. They certainly could, yes.

Q. How would that work?

A. BIO is responsible for random audits across the entire

agency. So the BIO commander will set some parameters on what

he wants to audit, conduct that audit, and then sends the

results office-wide so everybody's aware of what the audit was

and if there was any shortcomings.

Q. Now, when we were talking about the situation where I call

up and I make a complaint, is there going to be a written

record of that complaint somewhere?

A. By policy, you're supposed to make a recorded -- a

written -- sorry, a written document recording the complaint.

Q. And is there going to be an IA number pulled on my


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complaint?

A. Yes.

Q. Have you heard of the early warning system?

A. Early intervention system?

Q. Yeah, EIS. I don't know why I said "warning."

A. Same difference.

Q. Yes, that's my question. What is that?

A. It's a database designed to take the data that's put into

BlueTeam and/or IAPro, that may show a spike of an

employee's --

THE COURT REPORTER: May show a what?

THE WITNESS: Show an employee's.

BY MR. MASTERSON:

Q. Show a spike in employees, is that correct?

A. Yes. So let's say over the course of a year a particular

deputy gets several complaints. It would show EIS that there

has been an increase in complaints on this person, and just

allows the supervisor to keep an eye on the employee to see if

it continues, or to have a sit-down counseling session with him

to explain to him that they've kind of come up on the radar,

they need to adjust their behavior, or ask the employee what's

going on.

Q. Okay. You used another phrase in there, and I want to ask

you about that. You said BlueTeam. What's that?

A. BlueTeam is a database that records supervisor notes across


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the entire agency. For example, in Special Investigations, if

I have a sergeant that does particularly good work, I'll --

I'll make sure that there's an entry put under his profile that

he accomplished this case.

Conversely, if you're having a problem with an

employee where you had a sit-down discussion about their work

product, or something personal that they had with another

employee, you'd record that as well.

Q. Okay. So I think you've explained a little bit about my

next question, but my next question is: Generally, then, how

does EIS and BlueTeam relate to -- well, interrelate with PSB?

A. Well, everything that happens with an employee, whether it

be positive or negative, is recorded, and PSB would have access

to those records to see if they've previously been talked to

about their conduct, let's say.

EIS is a program designed to give us, as it's

dictated, an early warning of potential behavior that's

unacceptable by an employee, and PSB would have access to that

as well.

Q. Now, when you say "unacceptable behavior," are we talking

policy violations?

A. Could be anything. Policy violations, if it's recorded

that they're, you know, personality-wise they're not getting

along with employees, or making inappropriate comments, it

would include any of that.


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Q. I guess what I'm wondering is if this could consist of

something that's not a policy violation but may be somehow

generally concerning to you or to someone, to PSB in general,

does that then come into -- can that be a part of EIS and

BlueTeam?

A. Yes, sir.

Q. And then what happens?

Let's say a deputy is engaging in behavior which falls

short of policy violations, falls short of violations of law,

but -- and I'm going to use you personally. In your opinion,

are just unprofessional or something you don't want to see your

deputies doing. What do you do about that if you find out

about it?

MS. WANG: Objection, foundation.

THE COURT: I think I'm going to allow that question.

THE WITNESS: By its nature, let's say a deputy is

getting continual rudeness complaints where it doesn't really

rise to -- or what we have, the information we have doesn't

rise to a policy violation but it's showing a continued pattern

of behavior, it would allow the supervisor to intervene at its

earliest point and try and correct the behavior with the

employee.

BY MR. MASTERSON:

Q. Is there a system or a means by which you can do that in

PSB by utilizing EIS and BlueTeam?


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A. EIS is actually independent of PSB, but we could have

access to it and we could act upon what we were seeing.

Q. Okay. What would you do in that situation?

THE COURT: EIS is really for supervisors, isn't it?


THE COURT: So it's up to the supervisor to access

EIS, correct, and to benefit from its information in the

supervision of his or her deputies?

THE WITNESS: That's the way it's designed, sir.

THE COURT: So how would PSB -- I mean, you can access

EIS information, but you really would typically only have

access if you were doing some sort of an investigation of the

supervisor for the adequacy of his or her supervision, or to

the extent that that information might relate to an ongoing

investigation.

THE WITNESS: That's correct, sir, or the supervisor

calls us.

THE COURT: But in terms of actually regulating a

deputy's behavior, that's going to be up to the supervisor,

generally, right?

THE WITNESS: Generally, yes, sir.

THE COURT: And that's why EIS exists, right?


THE COURT: Same for BlueTeam, correct?

THE WITNESS: Yes.


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THE COURT: Thanks.

BY MR. MASTERSON:

Q. But the supervisor can utilize that information to provide

feedback and/or discipline to the employee, is that correct?

MR. KILLEBREW: Objection, leading.

THE COURT: I think it's appropriate, in light of my

question. I'm going to allow it.


BY MR. MASTERSON:

Q. And if a complaint is made, I think you already told us

that an IA number is going to be pulled, correct?

A. Yes.

Q. So PSB --

THE COURT: Well, let me just ask about that. If you

don't mind, Mr. Masterson.

MR. MASTERSON: No, sir.

THE COURT: If a complaint is made, how does somebody

know to distinguish whether or not they're going to put it on

EIS or whether or not this is a PSB complaint?

THE WITNESS: Well, every complaint would generate an

IA number, which would go -- we record it in PSB, if I'm

answering your question correctly. As it goes into BlueTeam,

it's also captured by EIS. So they're interrelated but

independent systems.

THE COURT: All right. I call.


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THE COURT: I call -- well, let's say that I'm

stopped. I'm stopped by Officer Smith. I think

Officer Smith's very discourteous. I tell Officer Smith: I

think you're very discourteous, and I want to make a complaint

right now concerning you.

Is Officer Smith obliged to take my complaint?

THE WITNESS: He's obliged to contact a supervisor so

they can take the complaint.

THE COURT: Okay. And then is the supervisor supposed

to call me?


THE COURT: And then the supervisor does what?

THE WITNESS: He would enter it into IAPro and obtain

an IA number for investigation.

THE COURT: All right. Thank you.


BY MR. MASTERSON:

Q. And in Judge Snow's example does policy compel the deputy

to contact the supervisor?

A. Yes, it does.

Q. And does policy compel the supervisor to have the IA

number pulled and to contact PSB?

A. Yes, it does.

THE COURT: And if the supervisor tells the -- if it's


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a complaint that the division then investigates, what will the

supervisor do? Or how will the division understand that this

is a complaint, this is an IA complaint that the division is

going to investigate?

THE WITNESS: What's your question, sir? I'm sorry.

THE COURT: How will the division come to know that

this is a complaint, an IA complaint that the division is

charged with investigating?

THE WITNESS: The supervisor should advise his chain

of command that the complaint came in, and based on what the

complaint is -- for example, a rudeness complaint -- it would

be handled by the division.

And that division commander would probably have

contacted me or the PSB commander to explain -- or through

e-mail -- that this complaint came in, a number was assigned,

and that they were going to handle it at the division level.

THE COURT: All right. And then you would let them

handle it at the division level.


THE COURT: But there would be an IA number.


THE COURT: Then let's say the division commander

directs the person who's doing the investigation in the

division: I want you to suspend your investigation into this

matter. And you call to find out about what the status of this


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IA number is. Do you consider -- and the officer then says:

There is no IA number here.

Is that something you're going to accept?

THE WITNESS: Depending on the situation, I would

accept the division commander's explanation, if it made sense.

THE COURT: Well, he didn't terminate the

investigation; he suspended the investigation. And then you

call the IA investigator and say, "What's the status of this IA

investigation?" and he says, "There is no IA investigation."

Does that make sense to you?

THE WITNESS: It would depend on what his commander

said to him and the reasons why he stopped the investigation.

But the investigation could be stopped at any time if -- if the

commander had good reason to do so.

THE COURT: All right. Thank you.


BY MR. MASTERSON:

Q. Let me ask you this question. Actually, I'm going to ask

you a couple of specific questions.

Judge Snow just asked you a question about if the

investigation was suspended and then the commander were asked a

question -- I'm probably paraphrasing, I know I'm paraphrasing,

I'm not going to get this question right, but I've got someone

here who can correct me.

The commander is asked, "Is there an ongoing


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investigation?" and the answer is "no" because the

investigation was suspended; is that an accurate answer?

A. Certainly could be, yes.

Q. Now, what if the question was, "Well, has there ever been

an IA number pulled, and has there ever been an IA

investigation into this incident?" and the answer was "no"; is

that an accurate response?

A. No, it wouldn't, if a nember -- number had been pulled.

Q. Okay.

THE COURT: But it wouldn't -- if the commander is

going to suspend the investigation, it wouldn't suspend the

administrative time limits, would it?

THE WITNESS: No, sir.

THE COURT: And it wouldn't suspend the existence of

an IA investigation.

THE WITNESS: No, sir, it wouldn't.

THE COURT: The IA investigation would still be in

existence.

THE WITNESS: Yes, it certainly could be.

THE COURT: All right. So if he said, "Is this an IA

inves- -- IA investigation in existence?" the appropriate

answer would be "yes."


BY MR. MASTERSON:

Q. So the answer to that question is -- the answer to that


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question is very question specific. In other words, if the

question is asked, "Is there an ongoing investigation?" you

could give one answer; if the question is, "Was there ever an

investigation?" the appropriate answer is entirely different.

A. Yes, and every number that's pulled, the expectation is

that that complaint, or whatever caused that number to be

pulled, that that case or the complaint will be reconciled one

way or the other.

Q. Okay.

THE COURT: So a case either has to be closed or it's

open.

THE WITNESS: Or -- or stopped in the interim. After

a number's been pulled, you could stop the case for a

particular reason.

THE COURT: So a division could manipulate an IA

investigation by merely suspending it.

MR. MASTERSON: Objection, argumentative.

THE COURT: Overruled.

THE WITNESS: Your Honor, I --

THE COURT: Well, let me just put it this way: A

division --

I'll grant your objection.

-- a division wouldn't have to report to you an IA

investigation that was ongoing -- or an IA investigation that

was suspended. They could say, "There's no IA investigation


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here."

THE WITNESS: After the number is pulled, you can't

say, "There's no IA investigation."



BY MR. MASTERSON:

Q. How does PSB keep track of open IAs?

A. Similar to how we do it with the divisions. Every month,

out of IAPro, the profile of open cases is pulled and the

sergeants are given that list -- I'm sorry, the lieutenants are

given that list so they can see the time frames on various

cases as they've progressed.

Q. And my next question was: How about IAs at the division

level? How does PSB keep track of those?

A. Same way. A list of numbers going out that's -- so when a

number's pulled from a particular division, it's the

division -- it actually becomes the division commander's

responsibility to look after that case and the progression of

those numbers. And they're sent a report every month that

shows them what cases and what IA numbers they're responsible

for.

Q. You talked with Ms. Wang a little bit about conflicts.

How do you deal with potential conflicts at PSB? Or

how did you deal with potential conflicts at PSB when you were

there?


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A. If an obvious conflict of interest arised, I would go to

the chief deputy and explain it, and we might have another

division do the investigation, or source it out to another

agency to do the investigation.

Q. Was anyone at PSB specifically charged with looking at

whether there was a potential for a conflict?

A. The lieutenants would generally look at the cases as they

came in and they would sit down with me -- at least this is how

it was done when I was there -- they would sit down with me and

talk about the various cases if they were -- especially if they

were serious in nature, of who made the complaint, who the

complaint was on, and what information we had, and at that

point we would attempt to identify any conflicts.

Q. Why is it the lieutenants would be sitting down with you?

A. That's part of their role is overseeing the supervisors

that are conducting the investigations.

Q. Does that happen with every IA that's investigated by PSB?

A. For the most part, yes.

Q. Well, is this -- is this a briefing process that takes

place, or what exactly is this?

A. It's a briefing process. I would usually have a staff

meeting once a week and we would discuss cases that have come

into the division, the status of particular cases, or any

issues that are arising out of the investigations.

Q. Would you consider conflicts as a part of that briefing


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process?

A. If one was identified, I certainly would.

Q. Do you have Exhibit 2881 up there?

A. Yes, sir.

MR. MASTERSON: Could we have the control of this,

please?

THE CLERK: Over there, or did you want the

document --

MR. MASTERSON: Here, please. Thank you.

BY MR. MASTERSON:

Q. Could you, Captain Bailey, please turn to -- and I'm going

to refer you down to the Bates number down on the bottom, MELC.

Do you see that number down there?

A. Yes, sir.

Q. Look at 1306918, please.

A. Okay.

Q. What I'm looking for is under the Procedures paragraph

there, paragraph 1. Do you see that?

A. Yes.

Q. And we've talked a little bit about this so far with

respect to me making a phone call; Judge Snow making a phone

call. Will there be a written document that shows that those

phone calls were made?

A. Phone calls between who? I'm sorry.

Q. Making a complaint. If I call up and make a complaint,


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whether I call a main MCSO number, whether I call a complaint

line, is there going to be a written document?

A. Yes, there should be.

Q. Is this the policy that deals with that?

A. Yes.

THE COURT: This is Exhibit 2881?

MR. MASTERSON: 2881.

THE COURT: Is it already in evidence?

MR. MASTERSON: Yes, sir.


BY MR. MASTERSON:

Q. Now, Ms. Wang asked you a couple of questions about the

second sentence in that first paragraph: "When a third party

registers a complaint on behalf of another individual, every

reasonable effort shall be made to contact the alleged offended

individual to verify the complaint."

Do you see that?

A. Yes, sir.

Q. And it says: "An investigation will be conducted when the

first party agrees with the complaint or the first party cannot

be contacted."

Do you see that?

A. Yes, sir.

Q. Regardless of whether the first party is contacted or

agrees with the complaint, will the complaint be documented,


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investigated as appropriate, and a written record made of the

findings and resolution?

A. Yes, sir.

Q. Now, Ms. Wang gave you an example that you contact this

person and are told that this person fears retaliation by MCSO,

I guess, or afraid of MCSO, I guess.

Are you still going to document the complaint?

A. Yes.

Q. Are you still going to investigate the complaint?

A. Yes, sir.

Q. And a written record's going to be made of the findings and

resolution?

A. Yes, sir.

Q. What if you contact -- you get a contact by a third party

telling you some other person made a complaint. And then you

go contact this third -- this third person, you're told:

"Well, that third party's an anti-police activist and is

lying." Are you still going to document the complaint?

A. Yes, sir.

Q. You going to investigate as appropriate?

A. Yes.

Q. Are you going to make a record of the findings and

resolution?

A. Yes.

Q. Does PSB maintain a complaint log?


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A. Yes, sir.

Q. What is that?

A. It's a written -- documented record of all the complaints

that come into PSB.

Q. How is that kept?

A. Electronically; the administrative staff keeps track of

that.

Q. Now, does this happen when -- we've talked many times about

for every complaint, an IA number is pulled. Does then, bang,

that goes onto the complaint log?

A. Yes.

Q. Okay. What's the purpose of that complaint log?

A. To keep track of the initial complaint and the time frame

in which the number was pulled, so it dictates when your 180

days start on an administrative investigation.

Q. Does that aid PSB commanders or supervisors in following

up, I guess, the status of PSB investigations?

A. Yes.

Q. Can it also be used to follow up division investigations?

A. Yes, sir.

Q. Now, Ms. Wang asked you a couple questions about employees

making complaints, and she seemed to be expressing concerns

about a Garrity warning being given.

So let me ask you this: If an employee comes to you

with a complaint about another employee, do you pull an IA


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number?

A. Yes.

Q. If you're going to interview the employee making the

complaint, do you give that person a Garrity warning?

A. The notice of investigation and Garrity warnings, yes.

Q. Why?

A. It explains their rights in the case and what the

expectation is of them during the investigation, to maintain

the integrity of the case so they don't talk about the case to

anybody else.

Q. In your opinion, is it important for an employee making a

complaint about another employee to tell the truth?

A. Absolutely.

Q. Do you consider it a serious matter when an employee makes

a complaint against another employee?

A. Yes, I do.

Q. Can a complaint against an employee have a significant

impact on the other employee's career?

A. Certainly could.

Q. Is truth important in PSB investigations of complaints made

by employees?

A. Yes, it is.

Q. Now I want to talk a little bit about the Deputy Armendariz

situation, and it's because you testified that there were

failures to deal with Charley Armendariz with respect to


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citizen complaints.

Do you remember that?

A. Yes, sir.

Q. What do you mean by that?

A. There's a number -- over time, as I read or we conducted

the Armendariz investigation, there were several instances

where first-line supervisors had discussions with Deputy

Armendariz to correct his behavior, and on certain occasions

went through the chain of command and in certain occasions it

wasn't handled, for lack of a better term, aggressively enough.

Q. Does the EIS system that we talked about a few minutes ago

have an impact on -- or would it have had an impact on the

Charley Armendariz situation?

MS. WANG: Objection, calls for speculation.

THE COURT: Sustained.

BY MR. MASTERSON:

Q. Did Charley Armendariz have a number of citizen complaints

in his file?

A. Yes.

Q. What would the EIS system do with those complaints?

MS. WANG: Objection, calls for speculation.

THE COURT: I'm going to allow that.

THE WITNESS: It would have allowed the individual

supervisors to see that spike in his behavior, based on the

complaints, and take more corrective action, and it would have


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had those complaints recorded.

BY MR. MASTERSON:

Q. We already talked about the situation where a supervisor

could intervene even if there weren't policy violations

involved. I'm going to ask a little bit different question

now, and it's because you mentioned something about a fitness

for duty evaluation.

What is that?

A. Fitness for duty evaluation is called for when a particular

supervisor does what we refer to as a memorandum of concern,

based on the observations of an employee's conduct or behavior

that is so out of the norm that they are to go to a third-party

physician, and they go through an examination to determine

whether or not they're fit to be a deputy sheriff and return to

the course of their duties.

Q. Now, how exactly -- how does it come about? How can that

happen, that someone makes the decision, We gotta send this

person to a fitness for duty evaluation?

A. I can give you the example of Deputy Armendariz.

He'd threatened to commit suicide several times, and

the supervisors in HSU wrote a memorandum of concern and he was

ultimately evaluated at some point.

Q. What about some lesser circumstance than threatening

suicide, could you still get a fitness for duty evaluation?

A. You could. You could certainly file the memo through the


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chain of command and the human resources director would make

that determination.

Q. Okay. Now, outside something to the level of a fitness for

duty evaluation -- and I want to again give you the example of

we're not dealing with policy violations but we're dealing

with, say, multiple complaints on a particular deputy.

Does PSB have the ability to act in a

consultation-type capacity for deputies that may be having a

lot of problems with complaints?

A. Initially, PSB would contact their chain of command and

expect them to do it if it didn't rise to an alarming level.

Let's say it was rudeness.

THE COURT: If I can, is there any -- does PSB just

monitor EIS?

THE WITNESS: Yes, sir, for the most part.

THE COURT: So if a supervisor doesn't do his job or

her job, which would be figuring that out on the first end, PSB

will call the supervisor?

THE WITNESS: If we are made aware of it, that the

corrective action wasn't taken in the division or district, we

could call them and say, "What have you done with this

particular deputy? Have you done anything to satisfy these

complaints?"

THE COURT: Sure, if you're made aware of it, but how

would you be made aware of it?


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THE WITNESS: Somebody from EIS calling us and seeing

the corrective action hadn't been taken; say, notes weren't put

in the BlueTeam that said, "I had a consultation with Deputy

Jones on this date and we discussed it."

THE COURT: Wouldn't it be the normal procedure for

somebody from EIS to call the supervisor?

THE WITNESS: They could do that as well, sir.

THE COURT: Wouldn't that be more appropriate?

THE WITNESS: That's traditionally how it goes.



BY MR. MASTERSON:

Q. Ms. Wang also asked you several questions and she was using

the word "potential." And she used it in asking you a question

along the lines of: You found some purses in the HSU building;

could that be evidence of a potential theft?


A. Yes, sir.

Q. And your answer was, "Yeah, sure," or "Yes"; is that

accurate?

A. Could be.

Q. Did you find any evidence at all that some deputy sheriff

or somebody at MCSO stole those purses?

A. No, it was determined it was a mishandling of evidence.

Q. She talked about some TVs, and I think we used "potential"


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again. Did you find any evidence that an MCSO employee stole a

TV?

A. No, sir.

Q. Could you please take a look at Exhibit 2017. And

particularly, I'm going to refer you down to that MELC

number again, 1611093.

Could you take a look at that page, please,

Captain Bailey?

A. Yes, sir. Give me one second.

What Bates number? I'm sorry.

Q. Hang on. 1611093.

A. Yes, sir.

Q. Do you recall seeing this document -- I know it was two

weeks ago, so you might not, but do you recall this particular

incident?

A. Yes.

Q. Do you see on this page where the subject -- well, Deputy

Armendariz -- I can point you to this.

See the very last paragraph that says, "Deputy

Armendariz spends the next several minutes speaking"?

A. Yes.

Q. Now, I want you to move up from that maybe six lines or so.

Do you see: "Deputy Armendariz proceeds to look into the

vehicle and asks the subject how much money he has"?

Do you see that?


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A. Yes.

Q. Now, Ms. Wang asked you questions about this. "The subject

responds that he believes he has about $1100."

Do you see that?

A. Yes, sir.

Q. Then Ms. Wang asked you -- she either read it to you or she

asked you to read it, I don't remember -- "Deputy Armendariz

counts the money in front of the subject but not in view of the

camera and tells him he has $900."

See that?

A. Yes.

Q. Now, she left out the next line. Can you read that for me?

A. "The driver does not dispute the amount."

Q. Okay. Now I want to talk a little bit about the criminal

IA that was one of the Armendariz spin-offs or --

That was a spin-off, is that right?

A. This here?

Q. No, no. I'm talking about the 40 some-odd, 40, 50 deputies

that were interviewed in a criminal IA by Sergeant Tennyson.

A. Yes, sir.

Q. Do you remember that situation?

Whose idea was it to start a criminal IA on those

folks?

A. I ordered it.

Q. Did you consult with anyone else before you ordered it,


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ordered that IA?

A. I don't believe I did. I advised the chief deputy after I

gave that order.

Q. Did the chief deputy tell you not to do that?

A. No, sir.

Q. Why did you decide you needed to start a criminal IA on

those deputies?

A. For a couple of reasons. One, Perez's statements give the

indication or make the allegation that somebody stole a TV, or

that they were removing items inappropriately out of houses.

And by all accounts, that could be a theft, so I ordered a

criminal investigation on a potential theft.

Q. And what was the result of the investigation?

A. There's no evidence that members of HSU were stealing

anything from the houses.

Q. And you were asked a question: Do you stand by the

findings of the Cisco Perez criminal investigation? Remember

that?

A. That and the -- and the subsequent turndown from the County

Attorney's Office, who told us there was no value to those

items and there was no evidence of a theft.

Q. No evidence of theft?

A. Yes, sir.

Q. Did the monitor criticize you for that investigation?

A. Yes, sir.


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Q. Do you know why?

A. My understanding was they didn't think a criminal

investigation was warranted.

Q. Did you review Sergeant Tennyson's investigation of the

Cisco Perez allegations?

A. Yes.

Q. Did you have some problems with how he conducted the

investigation?

A. Some minor issues came up, yes.

Q. Did you talk with him about those issues?

A. I did.

Q. Do you recall what issues you talked with him about?

A. There was an original document that he initially gave to me

that had his findings and then some discussion he had had with

the monitors, and it was all one document. It was a draft. I

looked at it, read it, and I told him to take the monitor

comments out and just let the information about the

investigation stand on its own.

Q. How about his interviewing methods, did you have any

problem with that?

A. I wouldn't say I had a problem with it. It's not the way I

would have done it, but everybody has a different style when

they do interviews.

Q. Now, Ms. Wang asked you some questions about -- I think she

used the word "apologetic," that he appeared apologetic in


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asking questions. Did you have any conversations with

Sergeant Tennyson about that?

A. After the interviews were over, yeah, I did.

Q. What did you tell him?

A. That he doesn't have to be apologetic in terms of how we do

our cases. We're the finders of fact, and he's just merely to

ask the questions and get the best response and the best

information possible.

Q. Now I want to talk for just a couple minutes about the time

when PSB was going to review Armendariz videos.


A. Yes, sir.

Q. Was there a plan developed on how you guys were going to go

about doing that?

A. Yes, sir.

Q. How was that -- how was that done?

A. Sergeant Fax came up with a, for lack of better term, a

lesson plan, or a document that instructed the reviewers on

what to look for, policy violations versus legal violations, to

document the date and time and give a brief summary on what

their findings were.

The instruction was: If you see problematic behavior,

we need a summary written about it so we can investigate it

later.

Q. Did you re -- well, was a protocol prepared for reviewing


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the videos?

A. That's a better word for it; yes, there was.

Q. Okay. Is that what you were talking about?

A. Yes.

Q. All right. Now, I understood you to testify that there

were lieutenants involved in this review, and I'd just like you

to explain how exactly that happened.

A. We selected a number of lieutenants throughout the office

to come down to PSB -- actually, it was in the -- primarily in

the second floor, where there was a number of computers and

they could view videos independently and make their findings

after reviewing the videos.

Q. Do you have any recollection of how long this all took?

A. Months.

Q. How many lieutenants did you recruit to look at these

videos?

A. At various times, I think between 30 and 50.

Q. Now, I just have a couple of questions on the spin-off

investigations from Armendariz. Did I understand you to say --

well, I think I understood you to say, while I've been talking

with you up here, that there were a large number of Armendariz

spin-off investigations, is that correct?

A. Yes, sir.

Q. Now, what I want to ask you about is I didn't understand,

and you talked about it a little bit, but when there were


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sometimes separate IAs and sometimes you consolidated IAs, I'd

just like to understand better how it is and why you did that.

A. Some of the things we found at Armendariz's house where we

couldn't tie them being associated with Armendariz but

potentially with another deputy, I believe Sergeant Fax kept

them under one IA number.

Q. Okay.

THE COURT: May I follow up on that, Mr. Masterson?

MR. MASTERSON: I'm sorry?

THE COURT: I'm not sure I understood the answer.

Can I ask a follow-up on that?

MR. MASTERSON: Certainly.

THE COURT: When you say if Fax found items in

Armendariz's house that couldn't be tied to Armendariz, but

with another deputy, he kept them under one IA number, what do

you mean by that?

THE WITNESS: He kept them under the -- I believe he

kept them under the 221 IA number, because they couldn't be

associated with Armendariz but they weren't necessarily

associated with another deputy. So he didn't pull an

independent number if he couldn't reconcile it.

THE COURT: And so Armendariz is the only topic under

221.


THE COURT: Or the only subject under 221.


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THE WITNESS: If I remember correctly, yes.

THE COURT: But any other items that were also

associated with another deputy that couldn't be tied to

Armendariz are under 221?

THE WITNESS: Well, they couldn't necessarily be tied

to another deputy. We couldn't say they were from a case that

Armendariz did. There was no DR; there was no CAD entry; there

was no evidence that Deputy Armendariz was responsible for

those items; but we couldn't find another deputy, either, that

was responsible for it, Sergeant Fax kept them under the 221

number.

THE COURT: All right. So you kept under the 221

things that were not associated with Armendariz, and that you

could not -- you couldn't tie to any other deputy.


THE COURT: And does 221 have the efforts that you

made to tie those items to other personnel?




THE COURT: Thank you, Mr. Masterson.

MR. MASTERSON: Trying to figure out whether I have it

straight now.

THE COURT: Okay. Did I --

MR. MASTERSON: No, I -- I think you did it, but I


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just have one question.

BY MR. MASTERSON:

Q. But if you could tie it to another deputy, then a new IA

number would be pulled and that would be investigated.

A. That's how Sergeant Fax did it, yes.

Q. Okay. Then I think I got it.

All right. Now, I'm making a big jump. We're going

to Seattle.

A. Yes, sir.

Q. Were you involved in the actual Seattle investigation?

A. No.

Q. Do you know all of the information that Dennis Montgomery

provided to the investigators during the Seattle investigation?

A. A very cursory knowledge of it, but not all of it, no.

Q. Did you ever meet with Dennis Montgomery?

A. No.

Q. Other than that, I'm not sure what to call it, graph or --

it was the thing that you looked at that had the circles and

arrows and boxes and all those sorts of things. Other than

that, did you see any other documents associated with the

Seattle investigation?

A. Early on, Detective Mackiewicz showed me a page or

page-and-a-half document that he obtained from Montgomery.

Q. Was that a time line document?

A. No, it was a -- more of a bullet-pointed sheet of


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information.

Q. Okay. Other than those two documents, did you see any

other documents associated with the Seattle investigation?

A. Other than what I

Documents

Melendres v. Arpaio #1505 Oct 29 2015 TRANSCRIPT - DAY 17 Evidentiary Hearing