Melendres v. Arpaio #1583 Nov 20 2015 Transcript - Closing Argument

8/20/2019 Melendres v. Arpaio #1583 Nov 20 2015 Transcript - Closing Argument

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4581

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

November 20, 2015

9:01 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 21, Pages 4581-4820)

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 1583 Filed 11/23/15 Page 1 of 240


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Melendres v. Arpaio, 11/20/15 Evidentiary Hearing 4582

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 Foundation

Immigrants' Rights Project

By: Andre Segura, Esq.

125 Broad Street, 18th FloorNew York, New York 10004

American Civil Liberties Union of ArizonaBy: Daniel J. Pochoda, Esq.P.O. Box 17148

Phoenix, Arizona 85011

Covington & Burling, LLPBy: Stanley Young, Esq.

By: Michelle L. Morin, Esq.

333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

University of California Irvine School of Law

Immigrants' Rights ClinicBy: Anne Lai, Esq.

401 E. Peltrason Drive, Suite 3500Irvine, California 92697

For the Defendant Maricopa County:Walker & Peskind, PLLC

By: Richard K. Walker, Esq.SGA Corporate Center

16100 N. 7th Street, Suite 140


For the Defendant Joseph M. Arpaio and Maricopa CountySheriff'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



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A P P E A R A N C E S

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

By: Paul Killebrew, Esq.950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530

U.S. Department of Justice - Civil Rights DivisionBy: Cynthia Coe, Esq.

By: Maureen Johnston, Esq.

601 D. Street NW, #5011

Washington, D.C. 20004

For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLPBy: M. Craig Murdy, Esq.2929 N. Central Avenue, Suite 1700


For Lieutenant Joseph Sousa:David Eisenberg, PLC

By: David Eisenberg, Esq.

2702 N. 3rd Street, Suite 4003Phoenix, Arizona 85004

Also present:

Sheriff Joseph M. ArpaioExecutive Chief Brian Sands

Chief Deputy Gerard SheridanLieutenant Joseph Sousa



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I N D E X

Witness: Page

(None)

E X H I B I T S

No. Description Admitted

(None)

M I S C E L L A N E O U S

Argument Page

By Mr. Young 4597

By Ms. Wang 4633By Mr. Killebrew 4683By Mr. Masterson 4699

By Mr. Murdy 4771

By Mr. Walker 4796By Mr. Masterson 4807

By Mr. Young 4810By Ms. Wang 4813



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P R O C E E D I N G S

THE COURT: Please be seated.

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

Melendres, et al., v. Arpaio, et al., on for oral argument.

Counsel, please announce your appearances.

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

and Andre Segura of the ACLU for plaintiffs.

THE COURT: Good morning.

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

and Michelle Morin, Covington & Burling, for plaintiffs.


MR. POCHODA: Good morning. Dan Pochoda from the ACLU

of Arizona for plaintiffs.


MS. LAI: Your Honor, Anne Lai for plaintiffs.


MR. KILLEBREW: Good morning, Your Honor. Paul

Killebrew, Cynthia Coe, and Maureen Johnston for the United

States.


MR. MASTERSON: Good morning, Judge. John Masterson

and Joe Popolizio for Sheriff Arpaio and the alleged

contemnors, and we have Holly McGee with us.




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

on behalf of Maricopa County.


MR. McDONALD: Good morning, Your Honor. Mel McDonald

making a special appearance for Sheriff Joe Arpaio.


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

behalf of retired Executive Chief Brian Sands.


MR. EISENBERG: Good morning, Your Honor. David

Eisenberg, specially appearing on behalf of Lieutenant Sousa.

THE COURT: Good morning. Is that everybody?

I just want to take care of a few matters before we

get started and make sure I understand things. Yesterday we

had a telephonic conference in which I invited the parties, for

the most part, if they could answer any of the questions that

I'd filed on Wednesday today, that would be appreciated, but I

authorized you to file any answers in writing up to two weeks

after today, post-oral argument. I'm just going to put that on

the record.

Mr. Murdy, in that argument, or in the course of the

conversation, asked me to identify any excerpts in the record

that I was considering, or was aware that I was considering, so

the parties could address them. I identified several pleadings

and position papers filed by the parties that went up -- that



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preceded the preliminary injunction motion, and Ms. Iafrate's

representation sometime later pertaining to Chief MacIntyre's

duties with respect to the receipt of correspondence from

Mr. Casey. I've thought of a few more. I just want to put

them out there so you'll know. I don't think they'll be

controversial.

Starting with the May hearings, Chief Deputy Sheridan,

Chief Trombi, and others, including your predecessors,

Mr. Casey and Ms. Iafrate, made representations to the Court

about various materials they'd found. You've done that as

well. I think that there's probably enough hearing testimony

on those things and where they came from that I won't have to

refer back to statements made, for example, by Chief Deputy

Sheridan in which he indicated these things, or Chief Trombi or

you or Mr. Casey. But I may well be interested in referring to

those statements, and so if you want to address them and you

have concerns with them, please let me know.

You also made representations to me, Mr. Masterson,

about the 50 hard drives in the custody -- that are currently

in the custody of the marshal. You indicated that those

hard drives were the hard drives provided by Dennis Montgomery

to the MCSO. I'm not sure that we've ever had -- as I thought

about it last night, I'm not sure that we've ever had

affirmative testimony that establishes that, and that's

probably because you had made the affirmative representation to



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me, and that would be another one that I would be looking at.

I did read this morning -- I've had several things

filed. I read, for example, at least briefly reviewed,

executive Chief Sands' sort of summary, assuming that you were

using that in lieu of spending time today, Mr. Murdy. And

also, Chief MacIntyre has filed a request that he be released

from any consideration of criminal prosecutions.

In those motions they cite to, for example, Chief

Arpaio's deposition testimony, noting that it is consistent

with his trial testimony. For example, his trial testimony

that he relied on his subordinates to implement the preliminary

injunction and in his deposition testimony he indicates which

subordinates, apparently, he relied on. I don't know whether

you have a position about whether or not I can consider

deposition testimony, but I raise it for your consideration.

I'm not sure that specifications were not made in

Sheriff Arpaio's hearing testimony. I remember him saying

something similar in his hearing testimony; I'm not sure if

that specific factual specification was made. And it might be

of some interest to me when I'm considering findings of fact

and conclusions of law, so I just raise it for your attention

that at least that deposition testimony purports to say that he

was relying on Chief Deputy Sheridan and Executive Chief Sands

to implement the terms of the preliminary injunction order.

Those are the only other things for the parties that I



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could think of overnight that may be avowals that have been

made in the course of hearings, but as I say, there may be

others. If there are others, I will raise them to your

attention before I issue any findings of fact and conclusions

of law, in case you have any comment to make on them.

With respect to your 801(d)(2) motion for

reconsideration, Mr. Masterson, I do share, to some extent,

sympathy with the plaintiffs when they point out that you

didn't really object to any specific evidence, and I understand

that. I do think that you have a point, however, when you make

an argument that a confidential informant is not necessarily in

an agency relationship with a law enforcement agency.

I think that in some cases this is not -- let me just

be clear. I think that in some cases this isn't a traditional

confidential informant, it's more like they were paying

Mr. Montgomery for his services, although there was the aspect

that they were also paying him for access to records that he

was purporting to them he had illegally obtained.

Actually, what I was thinking about, though, is I

don't think it was error to admit any testimony that I can

think of because, A, there may -- it depends on his statement

whether or not he was in an agency relationship or making a

statement that was in the course of his agency relationship.

But if he wasn't, I'm not necessarily going to take what

Mr. Montgomery says for truth of the matter asserted on any



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event -- in any event.

But he was involved in conversations with the other

representatives of MCSO, and so I'm either going to consider --

if it gets down to me parsing those audiotapes that I think is

what you're talking about, I will determine whether or not it's

a statement made by Mr. Montgomery, and if it is a statement

made by Mr. Montgomery, whether that statement can be

considered in an -- made in any sort of an agency relationship

with MCSO. And if it's not, I'm going to consider whether or

not I'm going to consider the statement for the truth of the

matter asserted, which I think is, you know, may well not be

the case but it still, I think, overcomes the hearsay

exception.

So I guess that's how I'll approach those audiotapes

when I listen to them. If I think, when I listen to them, that

there's any portion that, for some reason, doesn't qualify for

a hearsay exception and is substantive, I don't know that I

want to parse through and say that with respect to every

statement that I don't think is relevant. But in fairness to

the plaintiffs, if I think a statement is relevant to my

findings of fact, but as I review it, because I've admitted

these tapes in evidence, if I think there's some basis for your

motion for reconsideration, I will alert the parties so that

the plaintiffs can address whether or not I should

substantively consider it, or consider it not for the truth of



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the matter assert -- for the truth of the matter asserted even

if I find that there is no agency relationship established.

Is that -- everybody understand that?

Maricopa County -- oh, Mr. Masterson.

MR. MASTERSON: Just one thing, Judge. I think it

will apply to more than the audiotapes, because there are a

number of e-mails that have statements made --

THE COURT: Well --

MR. MASTERSON: -- by Mr. Montgomery.

THE COURT: -- I may or may not do that, but, again,

I'm not going to get bogged down in any of that stuff. I'm

going to look at it all, and if there's something that's

important, I may raise it, but I've admitted those exhibits.

We didn't have this discussion -- I mean, we did have a little

bit of this discussion towards the end of the last day of

evidence, but I just can't imagine that there's anything in

those tapes that either isn't made in an agency relationship or

that I'm going to consider for the truth of the matter

asserted. But if there's something that falls into that

exception and it could be either damaging to the plaintiffs or

damaging to you if I were to consider it, I'll raise it with

you.

MR. MASTERSON: Thank you, Judge.

MR. YOUNG: Your Honor, it would be our view that

there really has not been preservation of any alleged error in



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what this motion concerns, and it's unfair to us to have such a

motion be considered to preserve any error because if there

were an objection to a document or a recording that's already

been admitted, or a statement that's already been admitted, we

should have the chance to address that objection and --

THE COURT: Didn't I just say I would give you that

object -- give you that chance if I thought there was anything

that merited my raising it with you?

MR. YOUNG: Yes, Your Honor.

THE COURT: All right.

MR. YOUNG: Thank you.

THE COURT: All right. As I was reviewing things that

we need to tidy up and close up, you've already -- I've already

given you matters that remain under seal that I think maybe

should go out from seal, and I know the court reporter

indicated to me last night that some of you had asked for

copies of those particular transcripts, so I'll expect that

within two weeks, if there's anything that you think still

needs to be under seal, you'll let me know that and let me know

why.

Also, Mr. Masterson, I remember a couple of weeks ago

we had an exchange about whether or not any highlighting on a

particular exhibit -- which I don't know was ever admitted into

evidence, but may have been -- was the result of the original

clients, or whether or not the monitor might have highlighted



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information for you, because that was the exhibit I'd given to

you of papers that the monitor had given to me.

And I thought you were going to identify for me the

documents that you wanted to know where the highlighting came

from, and maybe that isn't where we left it, but that's where I

thought we left it and it's left hanging, so I don't have an

answer for you. Because I'm glad to ask the monitor if, in

fact, he highlighted anything. If you can tell me what it is,

what highlighting it is that you would be interested.

So in order just to tie that up, let's raise that

and -- and if you have -- if you want to know that, you need --

as far as I recall, and I may be wrong about this, but I

thought you were going to tell me what documents you were

interested in, and I don't think you've done that yet.

But if you do -- I may be wrong. If I am, if you'll

still tell me the documents, I'll tell you I will consult with

the monitor and see if he highlighted any of that before he

transmitted it to me, and if so, what he highlighted, and I'll

let all parties know.

MR. MASTERSON: I will do that, Judge.

THE COURT: Okay.

We have the motion for judicial notice from the

County, we have the objection from the plaintiffs; I don't

think I need to decide on that today. I did note that the

plaintiffs objected to noticing the summary. They would rather



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that I notice the invoices, and so maybe the County just wants

to provide the paid -- I don't know, do you have some sort of

paid receipt that you give the monitor when you pay him those

amounts?

MR. WALKER: Your Honor, I really don't know the

answer to your question, but I can check on that, see if we

can --

THE COURT: It doesn't seem to me that there's a huge

dispute about the substance of the payment, and I can't imagine

there would be. If the monitor has been paid, he's been paid

in connection with this litigation, as far as I'm aware, by

Maricopa County, and I just don't know if the amounts actually

paid are subject to dispute, but if you can give me those

actual payment amounts, that will be good.

And I do note that the other thing that you asked me

to judicially notice was my own payment order for costs

involved in the trial of this case. And I haven't gone back to

look at what it was, but I am certainly going to judicially

notice my own orders to the extent that the County can

demonstrate they actually complied and paid those amounts. And

I suppose that plaintiffs are in as good a position to tell us

whether they were paid those amounts as anybody, so I'm not

going to have a whole lot of dispute about that.

MR. WALKER: Thank you, Your Honor.

THE COURT: Is there anything else that any of the



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parties know that's outstanding before we begin?

MS. WANG: Yes, Your Honor. We have two matters along

these lines. The first is that the parties had agreed to a

protective order relating to the Touhy subpoena to the federal

government that plaintiffs served. That's document -- docket

number 1468. So we would request the Court's signature on that

stipulation so that we can get the materials from the federal

government.

THE COURT: Doc what?

MS. WANG: 1468.

THE COURT: Anybody object to my signature on document

1468?

MR. MASTERSON: No objection.

MR. WALKER: No objection, Your Honor.

MR. MURDY: No, Your Honor.

MS. WANG: Thank you, Your Honor.

The second issue is that the parties stipulated to the

admission of certain deposition testimony of Rollie Seebert in

lieu of his live testimony at trial, so we're still waiting for

your order on that. That's docket number 1469.

THE COURT: If you stipulated to it, the stipulation

is granted and I'll consider the testimony.

MS. WANG: Thank you, Your Honor.

THE COURT: Anything else?

All right. I am hoping, and I assume you gathered



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that, since I have to pull together all the facts and relevant

facts from the hearing and the exhibits from approximately 20,

if not 21, days of hearing testimony and the exhibits

submitted, that you'll sort of outline your case. I've

assigned two hours and 45 minutes per side. We're going to get

going.

Are the plaintiffs going to reserve any time for

rebuttal?

MS. WANG: We would like to, Your Honor, and we'll --

we'll gauge that as we go along. Any time that's remaining, we

would like to reserve.

And Your Honor, just to let you know in advance,

plaintiffs have split up the addressing of the topics.

Mr. Young will address the preliminary injunction and the

pattern of recalcitrance, including the Seattle investigation.

I will address, with the Court's permission, the

pretrial discovery violations, the May 14, 2014 events, and

matters concerning Internal Affairs.

We will take approximately two hours and 20 minutes,

and Mr. Killebrew for the United States will take about 25

minutes for his summation.


So who's going to going to begin?

MR. YOUNG: I will, Your Honor.

THE COURT: All right. You'll notice that I'm going



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Argument - Young, 11/20/15 Evidentiary Hearing 4597

to sit and stand throughout. It will help me stay awake.

MR. YOUNG: I'll try to assist you in that regard,

Your Honor. Or at least I'll try not to impair you in that

effort.

Your Honor, we don't have Mr. Klein today, so I'm not

going to actually show you or play for you video and audio;

you've seen that in the hearings that we've had.

I do want to say as to the injunction, that what's at

issue here is the fact that the current leaders of the MCSO

violated the Constitution, violated the Court's orders, and

then used the agency itself to try to insulate those leaders

from the consequences of those violations.

The Sheriff's Office should be protecting the public,

not its leaders, and it should be pursuing the enemies of

public safety, and not the enemies of the sheriff.

Unfortunately, Sheriff Arpaio, Chief Sheridan, Chief Sands, and

Lieutenant Sousa, and others working with them, decided to

ignore the preliminary injunction order of this Court for the

sake of the sheriff's political position.

They wanted the sheriff to be able to continue to tell

the public that he was enforcing all of the immigration laws,

and that was for his political benefit, particularly in the

election year of 2012.

They did stage an internal investigation -- a

violation of this Court's orders -- and found that no one in



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the department had violated any policies of the agency, and

that no one should be subject to discipline, notwithstanding

the rather valiant efforts of Mr. Vogel both to have the MCSO

have an internal -- an independent decision maker, and also to

subject the sheriff to that investigation.

Then after this Court's trial findings in 2013 -- and

in particular, after its decision to appoint a monitor in

October 2013 -- the sheriff continued to search for ways to

undermine this Court and its rulings. We saw the video of the

sheriff reacting on the issue of public interaction; we saw

Chief Sheridan call this Court's orders ludicrous and crap.

But more ominously, we ended up with the Seattle

investigation, with an investigation of enemies of the sheriff,

including Mary Rose Wilcox, Eric Holder, Lanny Breuer, and

unfortunately, this Court.

The sheriff's attorneys have argued, or implied, that

somehow the sheriff should be able to rely on shady characters,

even criminals, and that may be the case. However, here

Sheriff Arpaio and Chief Sheridan enthusiastically became shady

and unsavory people themselves, fully aware that what they were

trying to do would be illegal, and that they -- or that they

would rely on what they thought was illegal activity by

Mr. Montgomery.

All this activity shows contempt, intentional

contempt, intentional violation of this Court's orders, and



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intentional efforts to conceal and escape the consequences of

those violations. That activity is not worthy of the

sacrifices that rank and file MCSO employees make every day,

and the risks that they take to their lives and safety every

day. It requires a thorough reform of the agency, further

reform to the internal investigations process and other

operations, to make sure that the MCSO does not commit these

violations again.

So I'm going to go through in a little bit of detail,

Your Honor, both the preliminary injunction issue and the

Seattle investigation issue, and other manifestations of the

agency's defiance of this Court's orders.

I'd note various exhibits, 71, 67, which the sheriff

and Chief Sheridan have admitted. That's the motion to vacate

and the OSC, and the injunction order. 71 and 72, they admit

all of those things as fact.

So we're not really dealing here with whether they

should be liable for civil contempt -- this is Arpaio and

Sheridan, because they've already admitted it -- and the issue

here is what the remedy should be.

We have clear notification by Mr. Casey to

Chief Sands, Lieutenant Sousa, Chief Sheridan, and Sheriff

Arpaio, as well as Chief MacIntyre, on December 23 in

Exhibit 187. Immediately, Mr. Casey told them: You cannot

turn anyone over to the federal government. That's at 1642 and



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1639 of the transcript.

THE COURT: Wait a minute. Give me those again.

MR. YOUNG: 1642, 1639. Those are pages of the

transcript.

THE COURT: Okay.

MR. YOUNG: Then there's an immediate conversation on

the evening of December 23rd reported by Mr. Casey in his

e-mail, Exhibit 2534, where he says that Arpaio is conflicted,

and Sands and MacIntyre relatively pleased.

Mr. Casey's time records, which is 2523, Exhibit 2523,

show more conferences: on December 26 with Arpaio, Sands,

MacIntyre, and Sousa; on December 28 with Sands; on December 30

with Sands and Sousa. All of these discussions are about the

preliminary injunction --

THE COURT: Are the time records 2523 or 2533?

MR. YOUNG: The bills are 2533, Exhibit 2533. And

Mr. Casey testifies about this at transcript pages 1654 to

1655.

Despite this knowledge, the top people at the MCSO

never sent out a notification to all personnel within the

department to let them know that the activity that the Court

enjoined had been enjoined. Casey discusses doing this with

Chief Sands, according to transcript page 1653, but Chief Sands

says that Sheriff Arpaio says, No, let's not tell everybody,

let's just keep it to HSU, and Sands goes along with that



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instruction.

THE COURT: Now, is this Casey's testimony?

MR. YOUNG: Actually, what I just mentioned is Chief

Sands' testimony, and I don't have a page number for that right

now.


MR. YOUNG: Then there's a further discussion on

January 3, 2012, between Mr. Casey and Sheriff Arpaio. This

is, again, according to Mr. Casey's time record, page

MELC210542 of Exhibit 2533.

In Exhibit 2535, Mr. Casey describes that

conversation, and he says: "The sheriff called last night and

he wanted a notice of appeal filed on the injunction." And

this shows Mr. Casey's view, according to what Sheriff Arpaio

told him, that the MCSO was not detaining people based solely

on immigration status. And that's why Mr. Casey says that his

belief is -- according to the sheriff -- that the injunction is

relatively harmless to MCSO field operations. That, of course,

is completely untrue. Sheriff Arpaio never forgot about the

injunction. At all times after December 23, 2011, he's

testified, he's admitted, that he was well aware that the

injunction was there.

Other MCSO people also were aware because they started

the process of designing training scenarios in order to

implement the injunction. That's Exhibit 2536 and Exhibit 189.



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And at least a couple of the scenarios there, you know, were --

yes, Mr. Casey testified accurate. But there were a couple

that were not.

They never finished that process, however, and that's

another problem within the MCSO. Mr. Casey testified that he

told Sergeant Palmer that there were problems with the

scenarios, and he expected that those problems would be fixed.

And they never were fixed. There never was a further effort to

implement those training scenarios.

Chief Sheridan also knew about the injunction. We

have a number of e-mails on which he's listed. He has meetings

with Mr. Casey which I'll go into a little bit more later in

more detail when I speak specifically as to them.

We have Lieutenant Sousa's March 27, 2012 e-mail,

Exhibit 156, showing that he knew training was needed. He knew

that it had not been approved. Lieutenant Jakowinicz is also

on that meeting. So here we have people within the HSU who are

supposed to be implementing the injunction, they know it, but

they fail to do it.

Now, Sheriff Arpaio knew that he could not detain

people based on unlawful presence. He knew that because

Mr. Casey told him, he knew it because Chief MacIntyre told

him, he knew it because Chief Sands told him in the case of the

conversation about that drop house activity, and he knew

because Sergeant Palmer told him when they had their argument



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about these people that the sheriff wanted Palmer to hold.

THE COURT: It's pretty clear that Palmer

misunderstood the injunction, isn't it?

MR. YOUNG: That is true.

THE COURT: Palmer told him he couldn't hold them to

photograph them, but he told -- but in order to do what he

thought was complying with the injunction, he shipped them

right off to Border Patrol.

MR. YOUNG: That is true. But the key fact is that

they discussed the injunction specifically, and they discussed

specifically the injunction's prohibition on detaining people.

The fact that Palmer got it wrong as to the full contours of

that doesn't detract from the fact that the sheriff was in an

argument with one of his subordinates about not being able to

keep people because of the injunction.

THE COURT: I get that, but what does it really show?

MR. YOUNG: It shows that the sheriff knew about the

injunction and he knew that there were restrictions on his

ability to hold people.

THE COURT: I think as you've said -- and maybe I'm

wrong; we'll let Mr. Masterson tell me, or Mr. Popolizio. I

don't know that I heard the sheriff say a lot of times that he

really wasn't sure about the injunction. I think his defense

is: I delegated this to my subordinates and/or Mr. Casey to

implement.



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Isn't that what he said?

MR. WANG: Well, he --

THE COURT: Or does he also say: I didn't know.

MR. YOUNG: He alleges that, but the problem is that

the sheriff sets the policy for the department. So he doesn't

delegate that. He's the one who orders Jakowinicz to take

people to the Border Patrol. He's the one who orders all of

his subordinates to follow through on what I'm about to

discuss, which is his effort to continue to be able to say that

he was enforcing all of the immigration laws.

We have numerous press releases, Exhibits 75, 76,

where he says, right after the injunction is issued, despite

his knowledge of it, that he will continue to enforce all

immigration laws. Exhibit 202B, a video, one of his interviews

with Jorge Ramos, says he's still detaining undocumented

aliens.

In Exhibit 77, in the last paragraph he says he is,

quote, "adamant about the fact that his office will continue to

enforce both state and federal illegal immigration laws as long

as the laws are on the books."

He says that on video in Exhibit 2828A; he says it in

Exhibit 2829A, another video; in Exhibit 196A, at the

Republican National Convention in August 2012.

THE COURT: Which one was that?

MR. YOUNG: Exhibit 196A.



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He tells Fox News he will enforce all laws, state and

federal, with respect to immigration.

Then in June 2012, the sheriff had a series of media

appearances after ICE started to refuse to take people that the

MCSO was bringing to them based solely on unlawful presence.

He announced that he would come up with a work-around that

would involve precisely the backup plan that he later announced

in his news releases.

I would direct Your Honor to Exhibits -- and these are

videos -- 199A, where he says he will continue to enforce the

laws, and objects to letting people go as in amnesty, which he

doesn't approve; Exhibit 198B, nothing will change. He will

keep doing what he's been doing for the last four to five

years; Exhibit 197A, he addresses specifically the issue of

what to do when he has people with no state charges, and he

asked: Do we let them back on the street? And he says, That's

sad, and he will find a work-around and come up with his own

ideas for dealing with people where there are no state charges,

but where he believes that the person is in the country

unlawfully.

It's those ideas that then lead him to a further

violation of the court order, where he views this as just a

political matter. It's not a matter of complying with the

Court's orders; it's a political imperative that causes him to

do that.



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And you see this in his interview with Neil Cavuto on

June 25, 2012 -- that's Exhibit 200A -- where Mr. Cavuto

actually asks him: Well, do you think you're going to end up

in jail because of what you're doing to keep detaining people

when you don't have state charges? And the sheriff's response

to that is: Well, I don't want amnesty. I have a plan. That

shows that he is willing to violate an order of the Court in

order to keep doing what he wanted, which was to have people

vote for him and donate to his campaign.

And we see this in an April 13, 2012 interview,

Exhibit 201B, where he says: Yes, he's popular because of what

he's doing. He gets the big bucks because people like what

he's doing. And he sends out press releases because he wants

to know -- he wants everyone to know what he is doing.

Now, during that same summer, during the trial we

heard Mr. Casey testify that he heard of what he detected to be

violations of the injunction, and he and Mr. Liddy had a

conversation with Chief Sands about that issue.

And then he says he also spoke to Sheriff Arpaio about

Sheriff Arpaio's trial testimony on that issue. That's at

transcript pages 1851 to 1854. Mr. Casey told the sheriff

directly: You cannot hold people for federal authorities.

That's page 1854, lines 16 through 20 of the transcript.

And this is what Mr. Casey says: He said he told the

sheriff: Do you understand, Sheriff, that you cannot -- and he



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says it's almost the same conversation he had later on in the

fall of 2012 -- do you understand that there is no

transportation whatsoever to the federal authorities, that you

cannot hold? And then he says the sheriff said, quote: I do

understand that. So it's clear what Mr. Casey told Sheriff

Arpaio.

Then in 2012, shortly before the election, we have the

backup plan. That's precisely the kind of turning people over

to federal authorities that Mr. Casey and others had told the

sheriff you cannot do. Exhibit 51, a press release, says that,

Well, there's no state crime, but as directed by the sheriff,

two suspects were taken to the Border Patrol. And they're

going to enforce all the immigration laws.

Exhibit 56, on the ninth page is the incident report

that describes precisely that incident that's treated in the

press release, which is Exhibit 51.

Then on September 20, 2012, there's another -- it's an

employer raid at Nu Look Revinyling. That's at Exhibit 78,

which is the press release. He talks in what he acknowledges

is a political statement about opening up employment

opportunities for those who are in the country legally.

Exhibit 79 is the shift summary for that operation,

showing the lack of evidence for state charges on the second

page.

Another press release, Exhibit 52, dated September 27,



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2012, relating to United Construction, talks about ICE refusing

to arrest two illegal aliens, and Arpaio, quote, refusing to

allow them to be released into the streets and ordering

deputies to transport them to the Border Patrol, end quote.

Exhibit 81 is the shift summary for that raid. It

shows at the first -- bottom of the first page and top of the

second two particular people who were in the country illegally,

but whom ICE refused to take, and the sheriff violated the

injunction in order to transport them to the Border Patrol.

Exhibit 82 is an October 9, 2012 news release about an

incident -- about a traffic stop performed by Deputy Armendariz

where this same thing took place.

Exhibit 83 is the incident report on that incident.

It shows at the bottom of the third page that Deputy Armendariz

found no criminal charges as to Mr. Soto Gonzalez, and then

they took him to the Border Patrol, nonetheless. This is

precisely the activity that Lieutenant Jakowinicz testified the

sheriff ordered him and others at HSU to perform.

Exhibit 84 is another employer raid, October 12, 2012.

Six people were turned over to ICE for deportation, and that

they were detained despite the lack of evidence for state

charges, as indicated in Exhibit 85.

So in January 2013, shown in Exhibit 180, the sheriff

said: Until the laws are changed, my deputies will continue to

enforce state and federal immigration laws. That's despite the



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clear prohibition of the injunction. In paragraph 36,

Exhibit 67, that's the injunction, which says local law

enforcement agencies such as the MCSO may not enforce civil

federal immigration law.

There are more employment raids that are depicted in

Exhibits 80, 81, 86, and 89. All of this is happening despite

the fact that the sheriff knows that the Ninth Circuit affirmed

the injunction in September 2012. That's at transcript 2539.

THE COURT: Wait a minute, please.

All right.

MR. YOUNG: So, you know, there's a legal process. We

have judges who make decisions who tell people that they should

obey the law. We have appellate processes where people who

don't like decisions can go to the appellate courts and try to

get the decisions overturned.

They tried that in this case; they failed. They knew

what the law was; the sheriff knew what the law was; he,

nonetheless, went ahead and continued to violate it.

So then we get to October 2012, and as to some of

those press releases, we, the plaintiffs, send the Sheriff's

Office, through Mr. Casey, a letter, raising some concerns

about this issue.

What happened there -- and this involves both Sheriff

Arpaio and Chief Sands -- is that Sheriff Arpaio comes to them

and says: This is probably a violation of the injunction.



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That's at transcript pages 1687 and 1802. Mr. Casey says that

it's probably a violation. I refer later -- page 1691 of the

transcript -- according to Mr. Casey, the sheriff initially

said: I'm the sheriff and I make the decisions. That's

transcript 1692. They had a heated discussion. Then both

Mr. Casey and Chief Sands tell the sheriff that his actions are

violating the injunction.

THE COURT: What do I do about the fact that

Chief Sands doesn't seem to be able to remember any of this?

MR. YOUNG: Well, I don't think that's quite accurate.

There are certain things where he says he doesn't remember; on

the other hand, there are plenty of other instances where he

does actually remember. And if I can point to certain answers

to Mr. Popolizio's questions at pages 16 -- actually, sorry --

1969 to 1971, and 1974 to 1977, Chief Sands actually answers

quite a number of questions. And he also listened to all of

Mr. Casey's testimony. And Mr. Casey's testimony, he didn't

have any disagreement with Mr. Casey's testimony.

THE COURT: That's true, he didn't. It's kind of a

generalized statement, but he didn't have any disagreement.

When he was testifying himself, though, he seemed to have a

mighty poor memory of things.

MR. YOUNG: Well, Your Honor can take that into

account in connection with credibility findings. That's also

an issue that's relevant to the summary judgment motion, which



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is part of Your Honor's list of questions the other day. And

what I would ask is that we be allowed to respond in writing.

I know Mr. Sands filed something else this morning; I haven't

read that yet.

But the issue with the summary judgment motion, let me

say I think the motion should be denied. The issues can be

considered by the Court in light of the evidence that was

admitted, but there's evidence that has been admitted that we

think is highly relevant to the motion that's not in the motion

papers. We haven't had a chance to brief that because the

evidence came in afterward. There is material referred to in

the motion papers that's not in the evidence.

My request would be that the motion be denied and that

the parties have a chance, we certainly should have a chance,

to brief that issue further.

THE COURT: Brief what issue? Do you want me to deny

the motion and allow you to file a responsive brief to the

brief Mr. Sands filed this morning?

MR. YOUNG: Yes, that would be appropriate. I'm

prepared to argue the motion, and there are some new things on

the Sands motion that result from the evidence that has come in

since the motion papers were filed that I can argue if you'd

like to hear argument on that issue.

THE COURT: You can decide how to spend your time.

MR. YOUNG: All right. Well, why don't I -- why don't



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I do that after we go through the injunction --


MR. YOUNG: -- and the Seattle investigation.

So what happens in October, according to Mr. Casey --

and the sheriff does not contradict any of this -- is that they

had a heated discussion. In the end, Sheriff Arpaio tells

Mr. Casey: All right. That's a mistake. It won't happen

again. I'm not going to violate the injunction further.

Then they go ahead and send a letter that Mr. Casey

says he thinks it's likely going to lose if it ever comes up in

court, but he has enough that he thinks he can send the letter.

And that's at page 1806 about what the sheriff tells Mr. Casey,

and 1802 as to what Mr. Casey then did.

But the key here -- and this goes to the bona fideness

or non-bona fideness of that letter -- Mr. Casey tells Sheriff

Arpaio he's likely going to lose if that issue ever comes up.

That's at transcript 1802, 1691 to 1694, and 1847 to 1849.

That discussion indicates willfulness. It's

willfulness because it's knowledge of violation of the

injunction; there's an extensive discussion of the injunction;

and you have the lawyer for the sheriff telling the sheriff --

and Chief Sands -- that the activity that they're engaging in

violates the injunction. And Chief Sands agrees with that

assessment, according to Mr. Casey. Despite that fact, those

violations continued.



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On March 14, 2013, Exhibit 88 shows that seven people

were turned over to ICE despite a lack of evidence for state

charges. That's explicit in that Exhibit 88.

Exhibit 182, dated May 18, 2013, four people were

turned over to ICE without smuggling charges. And the sheriff,

in bragging about this, cites his oath to enforce all the laws

seriously.

The motivation for this? Again, 2012 is an election

year. Mr. Casey says that he was told by Chief Sands that this

was directed toward helping the sheriff politically, to

generate publicity. The sheriff himself, in some of the video,

says that the purpose of his press releases is to generate

publicity so the people like what he's doing. Transcript 1699,

as to Casey's testimony on that motivation.

And Sheriff Arpaio himself says this in August 2012 in

Exhibit 196D, his interview at the Republican convention. He

says he's got seven and a half million dollars in campaign

contributions because people like what he is doing. So what he

did was intentionally and calculatedly decide to violate the

Court's injunctions, notwithstanding his lawyer's advice, in

order to help his reelection.

Now, I mentioned various individuals. There are

people who are not alleged contemnors who contributed to the

violation that occurred here, and this shows a need for

thorough reform in the entire agency. We have various e-mails



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involving Chief Trombi, Lieutenant Jakowinicz, Lieutenant

Trowbridge, Sergeant Palmer.

Mr. Vogel, who investigated this issue, discusses all

these people at Exhibit 2219, pages 209, 858 to 861; that's his

report. So a whole department failed to take adequate steps.

Specifically as to Lieutenant Sousa, he knew about the

order. He knew about Casey's advice. Now, there's a -- he

says that, Well, Casey didn't actually say "arrest or release."

But the order itself, which Lieutenant Sousa did get, is quite

clear. And it's undisputed that Lieutenant Sousa never changed

anything that HSU was doing. Despite the fact that he knew

that there was the need for training, he didn't see it through.

Now, he left at some point in 2012 and Lieutenant

Jakowinicz took over that role, and Lieutenant Jakowinicz

didn't put any training in effect, either. But he did not

specifically see to it that people were trained so that the

injunction was complied with.

And I'm going to -- he testified to an interaction

with Mr. Casey, and I'm going to reserve that. I do have

some -- I want to discuss the advice of counsel issue when I

get to the end of this injunction discussion.

So Chief Sands knew about the injunction. He handled

it, according to his own testimony, he does remember that.

That's at transcript 1965. He was in charge of the operations,

but never publicized the injunction to the whole department.



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He heard Casey's advice during the trial. This is at page 1676

and 1678 of the transcript.

THE COURT: Is this Sands?

MR. YOUNG: Yes.

THE COURT: And he's acknowledging that he heard what

Casey said to him about evidence that the injunction was still

being violated during trial?

MR. YOUNG: He didn't disagree with what Mr. Casey

testified to.


MR. YOUNG: And he actually does say that he had some

recall of the events surrounding Mr. Segura's letter.

So, for example -- and I'll try to come up with a page

citation -- he did testify that he had some memory of those

events in October 2012. For example, at page 1959 of the

transcript -- this relates to Exhibits 2512 and 2514, the

correspondence between Mr. Casey and Mr. Sands and others -- he

does recall those events, or at least something relating to

those events surrounding the letter that Mr. Segura, counsel

for plaintiffs, sent.

So despite his knowledge, he also did not do anything,

really, to implement the injunction, other than telling -- this

is his own admission at transcript 1965 to 1967 -- other than

telling Sousa to obey the order.

Chief Sheridan's basic defense is that he was busy



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with other things, but he doesn't deny -- but his testimony is

not credible. The Court should look at all the e-mails that he

was copied on and take this into account. Chief Sheridan

denied even talking to Mr. Casey about the Melendres case prior

to the trial in July-August 2012. That's at transcript 950 and

953.

But that's not true. Mr. Casey's time entries show

that he talked to Chief Sheridan on December 6, 2011,

transcript 1628; March 23, 2012, page 210556 of Exhibit 2533;

Mr. Casey talked to Chief Sheridan on April 3rd, 2012. That's

transcript page 1675.

Both Chief MacIntyre and Chief Sands have testified

that they talked with Chief Sheridan about the preliminary

injunction shortly after it came out. Mr. Vogel's report says

the same thing. That's Exhibit 2219 at page 209857.

So these e-mails that Chief Sheridan received --

Exhibit 187, for example, about the injunction; Exhibit 2511

about the Ninth Circuit's affirmance of the injunction -- those

are not isolated things. Chief Sheridan can't say, well, he

wasn't paying attention to the case, and therefore he didn't

open the e-mails. He was talking to people -- Casey, Sands,

MacIntyre -- about the injunction. So he knew that it was

happening, it had happened.

So I would point, as to Chief Sheridan, to Mr. Vogel's

conclusions that Chief Sheridan violated department policy and



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ought to be disciplined. As page 209925 of Mr. Vogel's report,

Exhibit 2219, says, Chief Sheridan was actually subject to a

potential 40-hour suspension because of his misbehavior with

respect to the injunction. And it was only Chief Olson, in a

process that Ms. Wang will talk about, that was clearly

defective and is in need of further reform, that prevented him

from suffering that consequence.

So advice of counsel. It's undisputed that there was

never any affirmative advice. If you look at page 2498 to

2499, the sheriff admits that no lawyer ever affirmatively told

him that he could hold the people that he was holding and turn

them over to the federal authorities.

He's asked: I'm not asking about silence or

acquiescence. I'm asking whether any lawyer actually

affirmatively told you, Yes, you can do this.

The sheriff's answer is: Well, I don't recall any

lawyer, but if I do recall, other agencies were doing it.

That's not legal advice.

At page 2500, lines 16 to 2501, line 8, the sheriff is

asked: Did Casey tell you, Yes, you can do that, and it

complies with the injunction?

Answer: I don't recall him either way. I recall him

not having a problem with it.

Again, 2548, lines 12 through 25, Arpaio tes --

Sheriff Arpaio testified not recalling Mr. Casey saying that



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the sheriff could do that.

In fact, the sheriff never even heard of Mr. Casey's

letter back to plaintiffs' counsel until September 2015.

That's at transcript pages 2502 to 2503. No one else testifies

to any affirmative advice, either.

So we have a -- we have no advice here.

THE COURT: What about Sousa's testimony that he asked

Casey something about if the stop -- if we call ICE during the

course of the stop it becomes ICE's stop?

MR. YOUNG: Well, I'm glad you asked that question,

Your Honor. What Mr. Sousa actually -- what Lieutenant Sousa

actually said was: I told Mr. Casey my view of the injunction

and Mr. Casey didn't contradict me. And some version of that

is also in what Sheriff Arpaio alleges, that they said: This

is what I wanted -- construe the injunction to mean, and then

nobody ever told me anything wrong.

That's if you believe what they say. If you believe

what they say, under the case law, that does not suffice to

create an advice of counsel defense.

I would refer Your Honor to the Ninth Circuit criminal

jury instruction 5.9, which refers to a requirement that there

be full disclosure of all material facts to the attorney; that

the person claiming the advice of counsel defense must have

received the attorney's advice as to the specific course of

conduct that was followed, and then reasonably relied on that



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advice.

THE COURT: Sheriff said -- I can't remember whether

Sands confirmed this or not. Sheriff said, as I recall: I

told Sands to only tell the HSU because that's what the

attorney told me to do.

Was there ever any question put to Mr. Casey as to

whether or not he limited his advice in that way?

MR. YOUNG: I think Mr. Casey said that he told them

that everybody should be notified of the injunction. I may be

able to tell you the page on that at some point.

But the jury instruction is affirmed in various Ninth

Circuit cases. U.S. versus Bush, 626 F.3d 527: The person

claiming the defense needs to present evidence that he fully

advised the attorney of his plan, received advice regarding

that plan from the attorney, and followed that exact advice in

good faith.

Now, even if you believe what Sheriff Arpaio and

Lieutenant Sousa said, which I don't think you should, but if

you did, they don't satisfy that requirement. They did not

seek advice about the specific course of action before taking

that action. Sheriff Arpaio says, in fact, that he talked to

them -- talked to Mr. Casey afterward, and that Casey didn't

express objection, which is contrary to what Mr. Casey said.

But even if you assume what Sheriff Arpaio says is true, he

doesn't satisfy the requirements of the case law.



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And it's undisputed -- well -- yeah, it is undisputed

that Sheriff Arpaio didn't tell Mr. Casey all the facts, which

is another necessary element. The sheriff told Mr. Casey that

he was not detaining anyone -- transcript 1642 to 43 -- and he

told Mr. Casey that the October 2012 events were a mistake that

would not be repeated, transcript 1694. So he did exactly the

opposite of what Mr. Casey was advising him. That's --

THE COURT: Let me ask you this: Isn't Mr. Casey a

bit gullible by now?

MR. YOUNG: I'm sorry, Your Honor, a bit --

THE COURT: If I understand the chronology, Casey has

at some point reviewed Palmer's flawed scenarios; he's gotten

back and told Palmer that they're flawed scenarios. Then Casey

hears testimony, including testimony from Sheriff Arpaio, that

he still asserts the right to detain persons even if he has no

state charge, and he tells us, I think, that he pulled Sheriff

Arpaio aside after that and said: You can't be doing this.

And Sheriff Arpaio said: Okay. I'm not doing it. I won't do

it any more.

Then he gets the October instance and he said: You

can't be doing this. And Sheriff Arpaio says: I'm the

sheriff. And then he says: Well, this was just a mistake.

Does Mr. Casey bear any responsibility to see that

this -- that something a little broader happens here?

MR. YOUNG: Your Honor, we don't have a position on



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Mr. Casey at this point.

THE COURT: Does it impair his credibility at all?

MR. YOUNG: I don't think it impairs his credibility,

in part because the sheriff didn't -- doesn't contradict

anything that Mr. Casey says. And I will -- I will --

THE COURT: I remember. I remember the testimony

where he doesn't contradict him. If you have the page cites,

I'll take them, though.

MR. YOUNG: Sure. So at transcript 2543 to 2544,

Sheriff Arpaio does not deny telling Mr. Casey that he would

release people without state charges. And actually go back to

2542 of the transcript as well, that's because the sheriff

believed that President Obama was going to let people go,

anyway, so there was no reason to detain them.

THE COURT: Well, yeah, but was that after the October

incident? As I recall that one, that was when I first entered

the preliminary injunction.

MR. YOUNG: Yes, that was earlier on. And then at

2555 through 2556 of the transcript, the sheriff does not deny

telling Mr. Casey that he would follow Mr. Casey's advice.

Now, as far as Mr. Casey's credibility is concerned, I

point out that Mr. Casey actually represented to the

Ninth Circuit Court of Appeals that the Sheriff's Office was

not detaining people based on unlawful presence.

THE COURT: Well, he represented that to this Court



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even before the preliminary injunction, didn't he?

MR. YOUNG: He did. And it seems to me that if you're

trying to decide --

THE COURT: Let me really be clear about that. He

represented to this Court in writing that the Sheriff's Office

had no authority, and, in fact, had not been attempting in any

way to enforce federal civil immigration law since 2009.

That's what he represented to this Court before the preliminary

injunction.

I guess I'll say this to you, Mr. Masterson: Is there

any way that you can detain someone, if you don't have state

charges, under any legal authority, if you are not asserting

some sort of right under federal civil immigration law?

Go ahead, Mr. Young.

MR. YOUNG: I think that the sheriff was asserting in

trying to enforce federal civil immigration law. That's what

he explicitly said in all of his press releases and video

appearances. I think the sheriff believed that if he said,

Well, I'm not going to enforce federal civil immigration law,

he thought he was going to lose votes and stop getting as much

campaign contributions as he was. So it was his interest to do

that and say that, and in order to be able to say that, that's

what he did.

As to Mr. Casey, I do think that you should believe

Mr. Casey's testimony. Number one, he resigned from



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representing the sheriff in November 2014 before this contempt

proceeding ever arose. He said that his reason lay in part

because of the sheriff's resistance to following the Court's

orders.

He then, in testimony before this Court, scrupulously

followed his duties and refused to testify against his client

until compelled to do so. If the sheriff had not waived the

attorney-client privilege back in April, he would never have

done that. I think that you need to give some credence to

that.

Now, as to the October conversation, Mr. Casey says he

didn't ever see the press releases beforehand. That's at 1691.

But he does not deny -- the sheriff does not deny that. He

doesn't contradict Mr. Casey's testimony that Mr. Casey did not

read those press releases. That's at 2553 to 2554. So that --

the defiance of the Court's orders I think is clear and

warrants serious remedy.

On the advice of counsel defense, so not only did the

sheriff not tell Casey all the facts, he misled Mr. Casey as to

the facts. Plus they didn't get advice. They got silence,

maybe, assuming you believe what they say. Silence is not

advice. What they say they did was they told Mr. Casey their

views and then didn't get objection back. That's not advice of

counsel.

And I would refer the Court to United States versus



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Documents

Melendres v. Arpaio #1583 Nov 20 2015 Transcript - Closing Argument