Melendres v. Arpaio #1575 Nov 19 2015 Transcript - Status Conference

8/20/2019 Melendres v. Arpaio #1575 Nov 19 2015 Transcript - Status Conference

1/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

)))

)))

)

)

)))

No. CV 07-2513-PHX-GMS

Phoenix, Arizona

November 19, 2015

11:53 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Telephonic Conference)

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

Case 2:07-cv-02513-GMS Document 1575 Filed 11/20/15 Page 1 of 25


2/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Melendres v. Arpaio, 11/19/15 Telephonic Conference 2

A P P E A R A N C E S

For the Plaintiffs:American Civil Liberties Union Foundation

Immigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm Street

San Francisco, California 94111

American Civil Liberties Union of Arizona

By: Daniel J. Pochoda, Esq.

P.O. Box 17148

Phoenix, Arizona 85011

Covington & Burling, LLP

By: Michelle L. Morin, Esq.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights DivisionBy: Maureen Johnston, Esq.

601 D. Street NW, #5011

Washington, D.C. 20004

For the Defendant Maricopa County:

Walker & Peskind, PLLC

By: Richard K. Walker, Esq.By: Charles W. Jirauch, Esq.

SGA Corporate Center16100 N. 7th Street, Suite 140


For the Defendant Joseph M. Arpaio and Maricopa County

Sheriff's Office:Jones, Skelton & Hochuli, PLC

By: A. Melvin McDonald, Jr., Esq.

By: John T. Masterson, Esq.By: Joseph T. Popolizio, Esq.

2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012

For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLPBy: M. Craig Murdy, Esq.

2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012



3/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


A P P E A R A N C E S

For Deputy Chief Jack MacIntyre:Dickinson Wright, PLLC

By: Gary L. Birnbaum, Esq.By: David J. Ouimette, Esq.1850 North Central Avenue, Suite 1400


For Chief Deputy Gerard Sheridan:

Mitchell Stein Carey, PC

By: Lee D. Stein, Esq.

1 Renaissance Square2 North Central Avenue, Suite 1900Phoenix, Arizona 85004



4/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

11:5

11:5

11:5

11:5

11:5


P R O C E E D I N G S

THE CLERK: This is civil case number 07-2513,

Melendres, et al., v. Arpaio, et al., on for telephonic

conference.

Counsel, please announce your appearances.

MS. WANG: Good morning, Your Honor. For plaintiffs,

this is Cecillia Wang of the ACLU. We also have Dan Pochoda of

the ACLU of Arizona and Michelle Morin of Covington & Burling.

THE COURT: Good morning.

MR. POCHODA: Good morning.

MR. MASTERSON: Good morning, Judge. John Masterson

and Joe Popolizio for Sheriff Arpaio and the individual alleged

contemnors.


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

and Charles Jirauch for Maricopa County.


MR. McDONALD: Good morning. Mel McDonald making a

special appearance for Sheriff Joe Arpaio.


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

behalf of retired Chief Brian Sands.


MS. JOHNSTON: Good morning, Your Honor. Maureen



5/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

11:5

11:5

11:5

11:5

11:5


Johnston on behalf of the United States.


MR. BIRNBAUM: Good morning, Your Honor. This is Gary

Birnbaum and David Ouimette, special counsel to Deputy Chief

MacIntyre.


MR. BIRNBAUM: Good morning.

MR. STEIN: Good morning, Your Honor. This is Lee

Stein, specially appearing for Chief Deputy Sheridan.

THE COURT: Good morning. Is there anyone else?

All right. Mr. Masterson, I'm informed that you

requested the conference.

MR. MASTERSON: I did, Judge. Thank you for being

available on such short notice, and thank you to everyone else

who is available on such short notice.

Judge, I have a concern. I'll cut right to it. It's

we got your order yesterday afternoon, late yesterday

afternoon, and started to digest it last night and this

morning, and to get right to the point, I just don't think

there's any way we can discuss all this tomorrow morning.

There's an awful lot here that some of this -- well, a lot of

this is going to require we're going to have to go down and

meet with folks at MCSO, look into some of the issues the Court

has inquired about and find out where, exactly, we stand, and

if the Court wants an informed discussion on these issues



6/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

11:5

11:5

11:5

11:5

11:5


tomorrow, I just don't see how that's going to happen.

THE COURT: Ms. Wang.

MS. WANG: Your Honor, for plaintiffs, you know, I

guess our response is that all parties should have adequate

time to respond to the Court's questions. Plaintiffs are

prepared to go forward tomorrow, and as we've said before,

plaintiffs have a very strong interest in bringing these

proceedings to an expeditious conclusion. We had hoped to do

so tomorrow. But we are amenable to hearing any proposals by

defendants about how they can have adequate time to respond

and, yet, bring this to a close.

The Court had suggested in yesterday's order that

written submissions would be possible, so I wonder if we can

hear from defendants as to what their specific proposal is on

how much time they need, and in what format they would like to

address the Court's questions.

THE COURT: Well, first off, Mr. Masterson, I agree

that -- let me tell you what drove my request. And then I

agree, even though I tried -- I told you, I think, that I've

tried to keep up on this thing, but it's gotten so massive that

it got beyond me a little bit.

And what I'm really trying to get my arms around is a

number of exhibits that have been submitted, and those that

have not yet been submitted, and whether or not I would want to

look at those, and if I did want to look at those -- when I say



7/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

11:5

11:5

11:5

11:5

11:5


"not been submitted," I'm talking about things like 14-221,

which apparently has not -- I will tell you I just called

yesterday to check with my monitor to see if they had 14-221

and they didn't have it yet. And I know Ms. Iafrate

represented in court last week that it was at the vendor's to

be copied, and it occurred to me, as I was thinking about this

and trying to get the exhibits in order so that I could digest

them, and in context, that I might want to look at 14-221, and

then there may be some others that are closed that I might want

to look at.

So number 1 -- let's just go through them one by one

for a second, Mr. Masterson. Do you have any problem, if

anybody has anything more they want to say on Chief Sands'

motion for summary judgment, saying it tomorrow?

MR. MASTERSON: No, that's fine with defendant.

MR. MURDY: Craig Murdy, Your Honor. That will be

fine.

THE COURT: Okay. Number 2, any problem with that,

Mr. Masterson?

Well, I'm sorry. I didn't hear from you, Ms. Wang.

MS. WANG: Your Honor, we are planning to address

Chief Sands's motion tomorrow.

THE COURT: Okay. Number 2, any problem with that? I

think I've already indicated that on the record and have had no

problem, but I thought I would put it on there to be clear.



8/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

11:5

12:0

12:0

12:0

12:0


MS. WANG: Plaintiffs don't have any issue with

number 2, Your Honor.

MR. MASTERSON: Judge, I --

MR. WALKER: Your Honor, this is Richard -- go ahead.

MR. MASTERSON: I'm sorry, Rick. Go ahead.

MR. WALKER: This is Richard Walker, Your Honor. And

I won't have a problem addressing number 2 tomorrow, but the

County needs to register its objection to the consideration of

such matters that may have occurred or been entered when the

County was not a party to the case.

THE COURT: Okay. I'm going to overrule the objection

because the County's interests have always been represented in

this case in the status in which the County is now being sued,

which is as the legal entity for Sheriff Arpaio. But I

appreciate you clarifying --

MR. MURDY: Your Honor, this is --

THE COURT: -- Mr. Walker.

MR. WALKER: All right. I understand, Your Honor.

Thank you.

THE COURT: Um-hum.

MR. MURDY: Your Honor, Craig Murdy on behalf of Chief

Sands. We would object to the Court considering matters of

record or on the docket prior to Chief Sands' involvement in

this action.

THE COURT: Okay. Your objection's noted, but I still



9/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:0

12:0

12:0

12:0

12:0


intend to, if I find matters that are -- I believe

Chief Sands -- well, if I find matters that are on the record

that I think are relevant, I'm going to so indicate, and you

can preserve whatever objection you have, Mr. Murdy.

MS. WANG: Your Honor, this is Cecillia Wang for

plaintiffs. In response to Mr. Murdy's comment, I think the

issue would be whether any party who is affected by the Court's

consideration of what's in the record has a fair opportunity to

be heard on that question, and I think as long as -- it

obviously would depend on how the record is -- would be

considered and whether it be considered in relation to

Chief Sands. But so long as he has an opportunity to be heard,

plaintiffs don't believe there's any issue.

THE COURT: That's a good point. Let me just check

and see if there's anything that I've encountered in the

record -- and I'll tell you right now what it is -- that may

relate to Chief Sands or any other party that's currently being

represented. I'll do that at the end of the hearing.

What about number 3? By these numbers, I'm talking

about the numbers listed in document number 1566, which was my

order of yesterday.

MR. MASTERSON: Judge, this is John Masterson. I

didn't address 2 because I do have a question. Well, I

guess -- the Court says it feels free to consider matters set

forth in the docket and representations made by the parties and



10/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:0

12:0

12:0

12:0

12:0


their representatives to the Court.

My question is I just want to reserve -- or I guess my

position is I want to reserve objection, not knowing at this

point what representations made by parties or representatives

the Court's referring to in this particular paragraph.

THE COURT: All right. You know, I see that point,

and if I get, in my review of the record as I'm preparing

findings of fact, to points that I think that you have a right

to be heard on, I will indicate as much and allow you to be

heard. And if I have any today, I've made a list, I'll let you

know what they are right now so you can address them tomorrow.

Number 3. Any problem with that?

I mean, I don't think we -- well, yeah, any problem

with that? I don't think you need to do that, necessarily, I

will say, Mr. Masterson, I don't think you need to do that

tomorrow. We can set a time tomorrow by which you'll indicate

to me whether or not you have any problem with any sealed

portion, and we can hold a supplemental hearing if we need to.

MR. MASTERSON: Thank you.

THE COURT: Anybody object to proceeding in that way?

MS. WANG: No, Your Honor, from plaintiffs.

MR. WALKER: No objection for the County, Your Honor.

MR. MURDY: No objection for Sands, Your Honor.

THE COURT: Number 4, that was my proposal, for

example, if I felt like I needed to look at 14-221 or anything



11/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:0

12:0

12:0

12:0

12:0


that you had -- that the MCSO has any PSB report that they

filed during the course of the evidentiary hearing if I felt

like I needed or wanted to look at it. That was my proposal so

that everybody would have the opportunity to know what I was

looking at and comment on it if they wished, but I wouldn't

decide anything other than seeing what the report said. And as

I've indicated, I'm open to alternative suggestions.

MR. MASTERSON: Judge, John Masterson. One of my

concerns here is the Court I guess referring to or relying on

matters not in evidence without the parties having the

opportunity to examine a witness about that particular piece of

evidence or otherwise consider that particular piece of

evidence during the course of the trial or hearing on the

contempt charges.

THE COURT: Yeah, I understand that. And I'm not

really sure which of these final reports are in evidence and

which of them are final reports, which is one of the reasons

why I wanted the information I've asked for in 12C, so I've --

for what it's worth, I will represent to all parties that

although it is my understanding that such reports have been --

copies of such reports have been provided to the monitor when

they're complete, I have not seen any of them, nor have I

discussed any of them in substance with the monitor. I'm only

aware that some have been received and some have not.

I have asked once or twice during the course of the



12/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:0

12:0

12:0

12:0

12:0


hearing for the monitor to provide me with an update of IA

reports that he think he has or doesn't have, but aside from

that, I have not discussed any of these reports with him, for

what that's worth.

If I do decide that I think it would be helpful for me

to look at the content of a report, then I would propose that I

simply indicate -- provide an order to the parties that I would

like to look at that report and have them preserve any

objections.

But that does depend a little bit, Mr. Masterson, on

your ability, and the plaintiffs' ability, to give me 12C so I

know what parts of reports have been admitted in evidence, even

if the whole report hasn't, and what reports have been in

evidence.

Have I clarified why I was asking that question?

MR. MASTERSON: I think so, Judge.

MS. WANG: Yes, Your Honor. And for plaintiffs --

THE COURT: Go ahead, Ms. Wang.

MS. WANG: Thank you, Your Honor. For plaintiffs,

just in response to Mr. Masterson's comment, we have said since

before the contempt hearing that we will be asking for certain

additional injunctive relief or modifications to the Court's

previous supplemental injunction, and we will take the

position, and have been taking the position, that there are two

independent grounds for such injunctive leave. One is as a



13/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:0

12:0

12:0

12:0

12:0


remedy in the civil contempt; and the other is that the Court

does have the inherent authority, setting aside any ongoing

contempt proceeding, to issue orders in support of and in

enforcement of its previous orders.

So we understand the Court's request here and we don't

have any objection to that procedure. We would just seek

clarification that if the Court is considering MCSO's written

final report or any other materials in IA files that the

parties get notice. And to the extent that plaintiffs do not

have a copy of the report in question, we obviously would like

to have a copy of that and for all parties to be able to be

heard on consideration of those matters.

Whether an evidentiary hearing would be needed and

witness testimony would be needed, as Mr. Masterson suggests, I

think is something that we would have to take up on a

case-by-case basis. It's not always necessary, as the Court is

exercising its inherent authority, to issue injunctive relief

in a case like this.

THE COURT: Well, and just so all parties are clear

and so they can address this tomorrow if they want to in

conjunction with other questions, to the extent that it may

affect my factual findings, I believe that not only do I have

the two authorities that Ms. Wang has suggested, but when I

find discovery violations, I think I'm also entitled to create

remedies for those violations, especially when the trial's



14/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:0

12:0

12:1

12:1

12:1


already happened and relief has already been given. I think

that wholly independent of my contempt power for civil contempt

I have inherent authority to provide remedies for discovery

violations if I find that those exist.

But in any event, I will not -- I'm okay and I'm

amenable with the procedure of not -- I do want a final report,

without having to do it myself, of knowing which parts of IA

files have been admitted into evidence and what final IA

reports I have in evidence so that I don't -- just to make sure

I won't request anything -- any copies of reports from the

monitor without notifying the parties, but I want to make sure

that I know what I have and what I don't have.

So I still want what I've indicated in 12C, but that

being said, I won't ask to see any other reports,

Mr. Masterson, without informing the parties and giving them a

chance to be heard.

Is that acceptable?

MR. MASTERSON: Yes, Judge.

THE COURT: Ms. Wang?

MS. WANG: Yes, Your Honor. Thank you.

THE COURT: Mr. Murdy?

MR. MURDY: Yes, Your Honor.

THE COURT: All right. Now, most of the rest of

this -- and there may be some exceptions -- there may be,

really, no answers, Mr. Masterson, Ms. Wang, Mr. Murdy, but



15/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:1

12:1

12:1

12:1

12:1


I -- you know, as I was recalling the recollection -- as I was

recalling the testimony, I just wasn't sure. That's what gives

rise to most of these questions.

So, for example, Ms. Wang, I seem to remember, and I'm

not saying it's perfect, but I seem to remember Lieutenant

Jakowinicz talking about 171 persons who in roadside -- there

was a spreadsheet, I think -- roadside interdiction patrols

were detained and turned over to ICE, or maybe it was ICE or

Border Patrol. And I seem to recall that he said that there

was another sheet that had to do with workplace tallies with

workplace operations, or maybe MCSO operations generally, and I

remember Lieutenant Sousa's testimony pertaining to overhearing

radio calls.

But I'm just inviting you, if there are other -- if

there's other testimony or exhibits that would demonstrate the

numbers of persons that may have been affected or that you

think allows the Court to derive that number, to identify where

it is so I don't have to -- you know, what allegations you say,

or what evidence you say supports explicit findings, and if you

think that it's not possible to do that, I just want an

explanation why.

Can you do that tomorrow, Ms. Wang?

MS. WANG: Yes, Your Honor. We are preparing and

we'll be ready to do that tomorrow.

THE COURT: Is there an issue with you responding to



16/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:1

12:1

12:1

12:1

12:1


that, Mr. Masterson, Mr. Walker, or Mr. Murdy, tomorrow? I

really, frankly, don't see why on that one, because it all has

to do with evidence that's in the record. And I guess I'll say

if you can answer it, answer it; if you can't, then I'm

understanding and I'll excuse your non-answering of it.

MR. MASTERSON: Judge, this is John Masterson. I

guess what I can say is I'm not going to address this

particular -- this particular point, but in general, if

plaintiffs were to come forward with some information and say,

Well, the information requested by the judge in section 5A is

in Exhibit 2933, I mean, I don't have a problem with that. But

generally, as to whether I have the opportunity to comb through

the entire transcript of the 20 days, or I don't even remember

how many we had now, but the entire hearing, we're just not

going to have the opportunity to do that by tomorrow morning.

THE COURT: Well, that's fine, but I don't see why we

should wait, frankly. I've indicated what I was going to do,

and the invitation then is for me to do it. And, I'm sorry,

but I believe that I am as busy if not busier than you, and I

have other matters that I have to give my attention to, and I

realize you do, too. But tomorrow is the day that it's set --

MR. MASTERSON: Oh, I'm not --

THE COURT: What?

MR. MASTERSON: I'm not saying we can't do it, Judge.

I'm just saying that depending upon what the question is, I



17/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:1

12:1

12:1

12:1

12:1


don't know that we can do it by tomorrow.

THE COURT: Okay. Well, then generally -- that's all

I'm asking. I mean, I'm just telling you what my recollection

of the testimony is; I'm telling you the questions I have about

the testimony and the evidence. I think, with very few

exceptions, I'm not asking you to supplement anything. I'm

just saying if there's something like this in the record that

I'm missing, tell me where it is.

For example, you may remember Captain Skinner

testified that he issued internal directives pertaining to the

Court's February 2015 discovery orders. They may be in some

exhibit that's been admitted. I'm not sure that they are. But

if they are, and if the parties are aware of it, I guess I want

you to tell me. And if you can't tell me by Friday, and you

become aware in the next several days thereafter that it

isn't -- that it is there, I'm not going to object if you file

some sort of a paper saying, Here it is, as long as it's in

evidence. Do you understand what I'm saying?

I mean, it wasn't my desire -- and I do realize,

Mr. Masterson, this is a lot of stuff -- it wasn't my desire to

necessarily derail your presentation for tomorrow; it's just to

tell you what I'm interested in.

So, you know, it's fine by me if -- unless any party

objects -- within a week after, or I'll even give you two weeks

after the hearing, if you find that you can give me responsive



18/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:1

12:1

12:1

12:1

12:1


material to questions like, What's in the record? I'll accept

it.

Does anybody object to that? You'll need to do it in

writing.

MR. MASTERSON: Masterson. That helps a lot, Judge.

THE COURT: Any objection --

MS. WANG: Your Honor, for plaintiffs, no objection.

THE COURT: Okay.

MR. MURDY: Craig Murdy for Sands. No objection, Your

Honor.

MR. WALKER: No objection on behalf of the County.

THE COURT: All right. Do we need to go over any

question -- is there any questions, then, about individual

questions that you would wish to address, any party would wish

to address?

MR. MASTERSON: This is Masterson, Judge. I have no

further specific questions.

MS. WANG: None from plaintiffs, Your Honor. This is

Cecillia Wang.

THE COURT: All right. I suppose I could also say

that, you know, when one party says, for example, like with

that Skinner question, if defendants find something that they

say, This is the response that he gave, and plaintiffs contest

it, you can contest it. You can just say: We don't know that

that's true. But if it's admitted as an exhibit, or part of an



19/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:1

12:1

12:1

12:1

12:1


exhibit, I'm going to at least look at it to see what I think

it is, because it is in evidence and -- but I'll allow the

parties the right to contest that it is what the other party

says it is. Is that fair?

I'm not going to allow --

MS. WANG: Your Honor --

THE COURT: I'm not going to allow any party to try to

seek to take it out of evidence, but I will allow them, allow a

party to say, That's not what it is, it's this, or whatever.

Is that okay?

MR. MASTERSON: John Masterson. That's fine, Judge.

MS. WANG: Yes, Your Honor.

THE COURT: All right. Well, then, unless there's

anything else, I'll see you tomorrow.

MR. MASTERSON: Thank you.

MR. MURDY: Judge, this is --

MS. WANG: Thank you.

MR. MURDY: -- Craig Murdy. Your Honor?

THE COURT: Mr. Murdy.

MR. MURDY: Yes. You indicated that you would

perhaps, at the end of this hearing, I don't know if you meant

today's hearing or tomorrow, identify for us documents you

thought were in the record that may be applicable to Chief

Sands.

THE COURT: Yes. Thank you, Mr. Murdy.



20/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:1

12:1

12:1

12:1

12:1


And this may also be applicable to Mr. MacIntyre and

to Chief Sheridan, and one of the things may be applicable to

all. I'm just trying to remember things that I've seen that I

guess I should tell the parties about so they can address.

Way back when, when we were discussing whether or not

delivery of a message to Chief MacIntyre waived the

attorney-client privilege -- and I don't believe,

Mr. Masterson, you or Mr. Popolizio were in the case yet -- but

we were having a discussion as to why Chief MacIntyre was

copied on some of the correspondence, including the December

e-mail transmitting the preliminary injunction order from Tim

Casey, Maricopa County -- and, you know, I don't mean to

misstate the record, but Maricopa County basically said that

there was no reason that Chief MacIntyre got that

communication. His only job in connection with it was a

clerical function to make sure that Chief Sands and Chief

Deputy Sousa received that communication. There was that

representation, or something like it, made to me in court, and

I'm just going to invite you to address that, if you wish to,

whether or not I can consider it, whether I should or should

not, but that was clearly a representation made to me by

defense counsel at that time. That's one.

Another one -- the only other one I can think of right

at the moment, and if there are any more, I'll let you know --

is I do believe that the chronology of the documents in the



21/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:1

12:1

12:2

12:2

12:2


docket demonstrate that when the preliminary injunction hearing

was pending -- in other words, the parties' cross-motions for

summary judgment and a motion for class certification in early

December -- I issued supplementary questions before oral

argument much like the supplementary questions that we're

discussing in today's hearing, and they related to a March 2011

Ninth Circuit Court of Appeals case in which I said: This case

says that the MCSO cannot engage -- or that no state authority

can engage in attempting to enforce federal civil immigration

law.

The parties haven't really addressed that in their

briefing. It seems to me to be an important case and an

important holding relating to whether or not a preliminary

injunction should issue, I'm going to invite the parties to

address these questions, and then I laid them out. It's in a

December 1st, 2011 order from the Court.

Mr. Casey then, prior to oral argument, filed a

supplemental brief addressing those questions in which he

indicated that the MCSO did not claim any authority to enforce

federal civil immigration law, and hadn't done so since the

HSU -- or since the 287(g) authority was revoked, and that they

had further provided training concerning the Arizona case, the

March 2011 Arizona case, to the HSU.

It seems to me -- and then I went back and looked at

the transcript of the oral argument and my ruling on the



22/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:2

12:2

12:2

12:2

12:2


preliminary injunction, and it seems to me that some of

those -- some of those positions definitely may -- or that

difference in chronology may make a difference in terms of

defenses that may be raised by individual nonparty contemnors

about whether they knew about the injunction, or even whether

it's relevant.

Because if you read -- I believe it's on December 16th

that Mr. Casey files that supplemental brief. He indicates, I

think, something to the effect that the MCSO is only reserving

the right to do reasonable and limited detentions if they have

a reasonable suspicion that criminal activity is afoot under

state law, meaning at the time the human smuggling state law,

which then was -- hadn't yet been stricken. And it seems to me

that that may possibly affect some defenses by nonparty

contemnors, which may include all of the nonparty contemnors.

So you might want to look at those things.

Those are the only two things that I can think of

immediately, Mr. Murdy. But if I become aware of others as I

prepare my findings of fact and conclusions of law, consistent

with what I've said I would do with respect to the IA orders, I

will raise them to the parties and allow you to comment before

I -- I won't give you a long period, but I will allow you to

comment before I issue my final findings of fact.

Have I identified those two things that I can think of

clearly enough so that you think you can find them in the



23/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:2

12:2

12:2

12:2

12:2


docket?

MR. MURDY: Craig Murdy, Your Honor. Yes.

THE COURT: Mr. Walker?

MR. WALKER: You have, Your Honor, but not to put too

fine a point on it, you said the representation was made by

Maricopa County. I do not believe Maricopa County was a party

to the action at that time, and I believe the representation to

which you were referring in your first point was made by

counsel to the sheriff.

THE COURT: Yes, I believe that MCSO was a party at

that time, but I think you're correct that Maricopa County as

an entity was not named as a party until it was clear that that

was the jural entity that had to be sued when the sheriff and

the MCSO were being sued, so unless you disagree with that last

statement, I agree with yours.

Mr. Masterson?

MR. WALKER: Well, I think we're in agreement.

THE COURT: Oh, I'm sorry. Go ahead, Mr. Walker.

MR. WALKER: No, I -- I was just saying I think we're

in agreement, with that correction.

THE COURT: Mr. Masterson.

MR. MASTERSON: What's the question, Judge?

THE COURT: My only question was: Have I identified

those two areas of the docket that are of possible interest to

me sufficient so that you can locate them in the docket?



24/25

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12:2


MR. MASTERSON: I believe so, Judge. Thank you.

THE COURT: Ms. Wang.

MS. WANG: Yes, Your Honor, I understand.

THE COURT: Ms. Johnson?

MS. JOHNSTON: Yes, Your Honor.

THE COURT: Okay. I will see you all tomorrow.

(Proceedings concluded at 12:24 p.m.)



25/25

R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


C E R T I F I C A T E

I, GARY MOLL, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 20th day of November,

2015.

s/Gary Moll


Documents

Melendres v. Arpaio #1575 Nov 19 2015 Transcript - Status Conference