Coddling Joe: How Do You Collaborate With a Felon?
* COMMENTARY *
The Department of Justice, following a three-year investigation, identified Sheriff Joe Arpaio as overseer of the worst pattern of racial profiling in the history of the nation. A week later, on December 23, 2011, federal Judge C. Murray Snow allowed all Latino victims of the racial harassment to sue as a class.
You might believe from these two events that the sheriff is hog-tied; the reality, however, is more unsettling.
New Times cover story
Racial profiling is a felony.
Yet the top two black officials in the nation, President Barack Obama and Attorney General Eric Holder, intend, in the words of the Justice Department, to "collaborate" with Sheriff Arpaio to remedy the abuses.
Fully one-third of Maricopa County is Hispanic. Do the victims of racial profiling have a constitutional expectation that America's federal officials will do more than go into business with the perpetrator and perpetuator of bigotry?
The fact is that the U.S. Attorney's Office had little choice; the feds collaborated with Sheriff Joe Arpaio's Latino roundups, detentions, and deportations from the beginning.
When victims and advocates sued to stop illegal sweeps, Arpaio defied the federal courts. Repeatedly.
How do you partner with a felonious lawman who refuses to abide with something as basic as rules of evidence ?
And Arpaio also stonewalled the Justice Department by refusing to turn over any documents. He forced the feds to sue the Sheriff's Office to extract minimal compliance.
As the victims' lawsuits and the federal investigation dragged on, Arpaio hid files. His men destroyed evidence, shredded documents, and erased incriminating correspondence.
Arpaio willfully used a team of lawyers to orchestrate a cover-up that stretched over years to mask a racist culture.
Finally, U.S. District Judge Snow issued a series of orders that open the door to damages for any Latino citizen or immigrant wrongfully stopped by Arpaio's deputies. Yet even this pool of litigants is unlikely to stress Arpaio.
In offering to partner up with the sheriff, the Justice Department held out the alternative of litigation unless Arpaio cooperated.
Last week, Arpaio officially responded to the Justice Department.
With the subtlety of a drunk Marine fresh off of Parris Island, Arpaio staged a press event. In red type, all caps, and underlined, his press release screamed:
"SHERIFF ARPAIO MEETS TODAY'S DEADLINE; PROMISES TO CONTINUE FULL COOPERATION WITH INVESTIGATION BUT WILL NOT COWER AT THREAT OF LITIGATION."
Arpaio then served the Justice Department with 29 pages of demands.
This, then, is the color of collaboration.
Lawyers for Jesus Ortega Melendres filed suit on behalf of Hispanic plaintiffs in 2007 to stop Sheriff Joe Arpaio's immigration sweeps. Melendres v. Arpaio highlighted the sheriff's most controversial practice: the use of terror to round up migrants. In 2008, the American Civil Liberties Union and the Mexican American Legal Defense and Eduction Fund joined the suit with additional plaintiffs.
Arpaio responded to the lawsuit with characteristic defiance.
The sheriff, his deputies, and his lawyers repeatedly ignored legal notice to save evidence. They weren't warned once, twice, three times. Opposing attorneys alerted Arpaio close to a dozen times. The sheriff's people dismissed the warnings. This continues a historic pattern of Arpaio's ignoring the law.
Evidence in his custody is always in jeopardy. There is no such thing as a public record if it is an Arpaio document.
Arpaio's serial abuse of the legal system is the most dramatic red flag raised by the Justice Department's decision to "collaborate" with this perverter of law and ethics.
The sheriff and his command staff routinely destroyed evidence and refused to turn over documents as required by law.
Individual officer statistic sheets — an entire body of evidence in the racial-profiling case, as well as in the federal civil rights investigation — were shredded and never will be recovered.
On December 12, 2007, the racial-profiling complaint was served. Three months later, the Department of Justice notified Arpaio that he and his office were the targets of a civil rights investigation that focused on roundups of immigrants during his high-profile crime-suppression sweeps.
The destruction of evidence was not an accident.
On nine separate occasions, Arpaio and his command ignored the law and ignored warnings from opposing counsel.
When a lawsuit is filed, defense attorneys alert their clients that any and all relevant documents must be saved and turned over to the other side. No one is allowed to destroy evidence. Period.
Arpaio's deputy chief, Jack MacIntyre, isn't merely a lawman; he is an attorney. When notified of the hold on documents by attorneys for those bringing the suit, he refused to act.
"I must have simply, albeit regrettably, forgot to forward [the demand for documents] to others at MCSO," MacIntyre informed the court.
Deputy Chief MacIntyre took the position that he wasn't entirely culpable because the same request for a production of documents went to the sheriff's spokesman, Captain Paul Chagolla. This duplicate request to the sheriff's public-relations officer was pursuant to Arizona Public Records law.
Chagolla's notice was then forwarded to Lieutenant Doris Culhane, Arpaio's legal liaison. She said she passed on a general instruction to hold documents. No one paid much attention to her vague direction.
Despite this third contact, the Sheriff's Office proceeded to shred tens of thousands of "stats" pages, data that could have shown whether the immigration sweeps were crime-suppression missions that targeted all violations or simply efforts to pull over any Latino in the target area guilty of driving while brown.
On February 25, 2009, plaintiffs reiterated their demand for documents and were given a total of eight stat sheets that, somehow, escaped the shredder.
On September 10, 2009, the demand for documents was repeated.
When no documents were produced, another demand was issued on September 30. They sent the seventh notice on October 20.
On October 21, 2009, the production (or, more accurately, non-production) of documents was discussed at a pretrial hearing.
Arpaio's lawyers said, artfully, that all responsive documents in their possession had been turned over.
And, technically, it is true that they no longer possessed shredded documents and deleted e-mails.
Yet virtually two years after the suit was filed, on October 27, 2009, Sergeant Manny Madrid, a supervisor in the Human Smuggling Unit, admitted in deposition that he never was told by anyone to preserve evidence.
It is Sergeant Madrid who shredded his men's stat sheets, evidence that would prove critical in the allegation of racial profiling.
He also had deleted e-mails related to immigration sweeps.
(Maricopa County would discover backup computer files that, embarrassingly, captured all but one year of the e-mails in the Sheriff's Office.)
Other supervisors offered similar testimony.
They shredded documents. They deleted e-mails.
In 2007, Sheriff Joe Arpaio initiated what he called "crime suppression operations." Under direction of the newly formed Human Smuggling Unit, his deputies swarmed neighborhoods.
Utilizing any civil traffic violation — a broken taillight, a cracked windshield, unsafe lane change, and on and on — deputies pulled over vehicles and demanded proof of citizenship.
The attorneys who filed the lawsuit suspected that vehicles were targeted if they were driven or occupied by Hispanics.
But Sergeant Manny Madrid insisted there never was any racial profiling.
On March 21, 2008, Arpaio's men arrested 45 individuals. All but one were Hispanic.
On July 8, 2008, a sweep in Cave Creek yielded 19 arrests — 18 were undocumented Latinos.
Stopping Latinos for minor traffic violations (rather than for criminal conduct as mandated by federal agreements) consistently led to immigration arrests.
It means nothing, said Madrid. Referring to the deputies, Madrid said he believed his men were incapable of racial profiling: "I put my trust in them. They have been trained correctly. They have gone through several academies, such as the basic training academy, the ICE academy."
Yet discovery suggested that Madrid's faith in Arpaio's deputies was misplaced.
Numerous instances of racist correspondence among the sheriff's men surfaced.
What follows is a brief sample. From one deputy to another:
"Mexican words of the day: liver and cheese.
"Some vato tried to talk to my ruca. I told him, 'Orale, vato, LIVER alone. CHEESE mine.'"
"Mexican word of the day: harassment.
"The teacher asked Paco to use 'harassment' in a sentence.
"Paco smiles and says, 'Orale vato. Mi ruca caught me in bed with my sancha, pero that's ok porque I told her that . . . HAR-ASS-MENT nothing to me.'"
"Mexican word of the day: herpes.
"Me and my ruca, we order pizza. I got my piece and she got HERPES!"
The existence of such juvenile racial jibing, no doubt, startled the sheriff's assembled legal team. Arpaio barrister Timothy Casey already had assured all parties, in writing, that:
"The MCSO takes very serious any charge that it, or any of its officers, are or may be engaged in racial profiling. The MCSO expressly prohibits racial profiling in all its law enforcement activities. As such, it is MCSO policy to investigate all complaints, claims, or allegations regarding alleged racial profiling by the MCSO that are lodged with the MCSO.
"Upon receipt of such a complaint, MCSO management will contact each commander in charge of the division with the MCSO to identify and learn any and all facts and information relating to the allegation. Any facts and responsive information then would be evaluated by MCSO management, and appropriate and necessary action would be taken by MCSO management based on the data and information obtained. The MCSO will not tolerate any of its employees engaging in racial profiling or any other unlawful activity."
Well, that certainly clears that up . . . except that:
The sophomoric e-mails were not the only awkward items on deputies' laptops.
There were pictures of men asleep in wheelbarrows, which were identified as Mexican recliners.
Drunks passed out at tables were described as practicing Mexican yoga.
A series of Photoshopped images of improbable contraptions were identified as "Mexican engineering at its best."
The numerous examples of offensive stereotypes of Mexicans were merely the least lethal aspect of a rogue law enforcement culture. The bad-taste e-mails were reinforced throughout the chain of command with more reprehensible consequence.
Arpaio told a national publication in 2009 (while he was under federal investigation): "These people that come over; they could come over with disease. There is no control, no health checks or anything. They check fruits and vegetables. How come they don't check people? No one talks about that.
"They are all dirty."
Not surprisingly, the Department of Justice investigation found that Arpaio's jailers routinely abused prisoners who didn't speak English.
And, inside Arpaio's personal files, there was evidence of the discriminatory practices that put non-English-speaking people in county lockup.
Sheriff Joe Arpaio gave his deposition on December 16, 2009, two full years after the complaint was filed. Asked whether he'd been instructed to retain documents, he replied, "I have not."
This, though technically true, is a bit of a dodge.
Elected in 1992, Arpaio has been the continuous target of litigation. He knows from experience that he is not supposed to destroy evidence. Furthermore, he is obligated to turn over any and all relevant documents.
As a precaution, opposing attorneys not only demanded a litigation hold on all documents, they filed a document search under Arizona's public-records statute.
Ironically, Arpaio and his staff are the single worst abusers of Arizona's public records. The Arizona Court of Appeals found Arpaio not in compliance four times in the past four years. He was ordered to pay fees in three cases involving more than a dozen violations, many involving this newspaper. Arpaio's dozen offenses in four years dwarf those of other offenders; all other state agencies had a combined total of three violations in the past decade.
Arpaio's resistance to scrutiny, as well as the destruction of evidence by his people, dates from the sheriff's earliest days in office, according to attorneys Joel Robbins and Michael Manning.
Robbins represented a paraplegic who was restrained so violently that the young man left his cell a quadriplegic.
"It took two years for them to produce the tape of the officers restraining Richard Post, and when they did, our expert said the tape was degaussed. It had been run past a magnet, so all you could see were snowy images," Robbins said.
Post was crippled in 1996. Robbins claims the destruction of evidence almost is a given in cases he's litigated with Arpaio.
No Arizona attorney has litigated against the sheriff for jailhouse brutality and death more frequently than Manning. He concurs with Robbins that destruction of evidence is a given with Arpaio. And, like Robbins, he says the pattern began shortly after Arpaio took office, with the killing of Scott Norberg. In Manning's case against the county, the following evidence was concealed or destroyed: a deputy's notes the night of the killing, critical X-rays, the existence of a fractured larynx. When an independent autopsy discovered the fractured larynx, the county seized the body and the larynx itself disappeared.
How does the federal government collaborate with a sheriff who does not just ignore the law but actually is a lawbreaker?
Scott Norberg was killed in 1996, two months after the Justice Department's Civil Rights Division notified the county in writing that the gulag-like conditions in Sheriff Joe Arpaio's jail violated the Constitution.
The U.S. government has "collaborated" with Sheriff Arpaio in oversight of the jails for nearly two decades.
After two decades of "collaboration," the jails still are operated in defiance of human decency.
In 2008, federal Judge Neil V. Wake found that Arpaio's jail, despite some improvement, continued to violate the Constitution. The most serious offenses were threats to life and limb: a chaotic medical record system so unresponsive that it presents an active threat to health and welfare; the mentally ill, who form an inordinate percentage of the jailhouse population, are not merely undiagnosed, but are at physical risk and brutalized.
According to Judge Wake: "Detention officers often do not know which pretrial detainees in their custody have been identified as seriously mentally ill . . . pretrial detainees have been punished for behavior related to serious mental illness.
"Thorazine is an anti-psychotic medication with potentially severe and permanent side effects, including extremely painful involuntary muscle spasms of the neck, tongue, eyes, or other muscles, a profound restlessness and constant movement of the feet and legs, drug induced Parkinsonism and tardive dyskinesia [potentially permanent disfiguring involuntary movement at the face and/or limbs].
"Although Correctional Health Services witnesses testified they would not prescribe Thorazine as a first line of treatment, in fact, CHS has prescribed Thorazine for many psychotic, and even some not psychotic, pretrial detainees without justification for its use. CHS psychiatrists sometimes prescribe Thorazine as a sleep aid."
After 34 years of federal oversight, this is the color of collaboration.
On the morning of December 15, Assistant U.S. Attorney General Thomas Perez announced that his office would partner with Sheriff Joe Arpaio to rectify abuses. That night, as news of the "collaboration" circulated, deputies killed Marty Atencio, a bipolar veteran off his meds and acting strangely. The videotape shows a passive Atencio jumped by a mob of lawmen. The victim is Tased — repeatedly — tossed into a cell, and stripped. He never regained consciousness.
In 2010, we published Deborah Braillard's story ("What's Mom Worth?" December 9). Arrested on a minor charge, she went into a diabetic coma in Arpaio's custody. The jail had her medical records and knew she needed insulin. No one looked at her records.
Instead, numerous shifts of jailers watched her vomit and defecate all over herself. She groaned in agony, went into convulsions, and died.
Over a three-day period, the jailers ignored Braillard's misery, telling other inmates she was kicking drugs. (She was not. In any case, had she been withdrawing from alcohol or drugs, she would have required immediate medical attention.)
This systemic sadism continues after decades of collaboration with federal oversight, and now the Justice Department wants to partner with the sheriff on racial profiling?
In his first deposition, Arpaio revealed that he maintained his own, private, immigration file. He had not turned over the file for review to the plaintiffs who'd sued his office.
He claimed that his attorneys had not instructed him against destroying or hiding evidence (never mind what he should have known after decades of litigation.)
Arpaio's conduct was so outrageous that the judge ordered the sheriff to turn over the file and sit for a second deposition after the file had been reviewed. But even the judge's order does not capture the contempt Arpaio and his attorneys displayed.
One month before Arpaio's first deposition, opposing counsel filed a motion for sanctions because the Sheriff's Office had blatantly destroyed evidence.
The plaintiff's motion was the legal version of a loud honking horn. Arpaio's lawyer, Tim Casey, responded to the November motion by telling the court that the sheriff's in-house attorney had forgotten to issue a critical "document hold" warning.
But in December, a month after Casey's awkward alibi, Arpaio claimed he still never had been warned.
You can believe that the sheriff had wildly incompetent lawyers or you can believe that Arpaio lied. You cannot believe this was an innocent event.
A subsequent examination of the sheriff's file showed that residents of Maricopa County wrote to him regarding the presence of Mexicans in greater Phoenix.
Citizens saw day laborers. They saw people with brown skin. They heard Spanish spoken.
And what the letters reveal is enormous anxiety about Hispanics:
• "I always see numerous Mexicans standing around in that area . . . These Mexicans swarmed around my car, and I was so scared and alarmed . . . I was never so devastated in my life regarding these circumstances . . . Although the Mexicans at this location may be within their legal right to be there . . . I merely bring this matter to your attention in order that all public agencies, FBI, etc., may be kept informed of these horrific circumstances."
• "I would love to see an immigrant sweep conducted in Surprise, specifically at the intersection of Grand and Greenway. The area contains dozens of day workers attempting to flag down motorists seven days a week."
• "The Mesa police chief drags his feet and stalls . . . the head of the Mesa police union is a Hispanic."
• "As a retiree in Sun City, formerly from Minnesota, I am a fan of yours and what you are doing to rid the area of illegal immigrants . . . when I was in McDonald's at Bell Road and Boswell (next to the Chase Bank) this noon, there was not an employee in sight, or within hearing, who spoke English as a first language — to my dismay. From the staff at the registers to the staff back in the kitchen area, all I heard was Spanish — except when they haltingly spoke to a customer. You might want to check this out."
And Sheriff Arpaio did check it out.
None of the Hispanics described in the letters had broken the law. It is not against the law to speak Spanish or work as a day laborer.
Arpaio nonetheless gave the correspondence to Deputy Chief Brian Sands. Federal Judge Snow determined that raids and roundups quickly followed. Hispanics were rousted because white people were uncomfortable.
When the Justice Department and the Arizona ACLU contended that Sheriff Joe Arpaio committed the worst pattern of racial profiling in the history of the United States, they faced a serious opponent: the federal government.
In April 2008, Matthew Allen, newly appointed special agent in charge of Immigration and Customs Enforcement in Arizona, said of the sheriff, "He has stayed within the bounds of the agreement."
Five months later, ICE audited Arpaio's 287(g) program without issue. This followed an audit that Arpaio passed in 2007.
In 2009, Vincent Picard, Phoenix spokesman for ICE, again stated that Arpaio had not violated protocol.
In fact, Arpaio's attorney, Tim Casey, intends to call at least six witnesses from the Phoenix and Washington offices of ICE when Melendres goes to trial.
So you see, when Assistant Attorney General Perez announced that despite the sheriff's felonies, the federal government intended to "collaborate" with him instead of indicting him, Perez merely was acknowledging the collaboration that had been underway for years.
Recall, too, that Director of Homeland Security Janet Napolitano oversees ICE. And she, as governor of Arizona, was critical in getting Arpaio and his deputies certified under the 287(g) program.
Arpaio's collaboration with ICE is as fraudulent as the one Perez announced.
ICE's endorsement of the sheriff's immigration sweeps is, at a minimum, corrupt.
All the roundups begin with deputies pulling over vehicles for minor traffic violations. The traffic stops are the pretext to interrogate driver and passengers and demand proof of citizenship.
ICE's own guidelines state: "The 287(g) program is not designed to allow state and local agencies to perform random street operations" and "is not designed to impact issues such as excessive occupancy and day labor activities . . . Police can only use 287(g) authority when people are taken into custody as a result of violating state or local CRIMINAL [emphasis added] law. Police cannot randomly ask for a person's immigration status or conduct immigration raids" and "[officers may only] use their authority when dealing with someone who is suspected of a state crime that is more than a traffic offense."
The Memorandum of Agreement that Sheriff Arpaio signed with ICE is even more specific in spelling out criminal behavior that can trigger an immigration enforcement: "high-risk felons . . . that represent a significant threat to public safety . . . criminal enterprises . . . organized crime . . . gangs . . . narcotics trafficking . . . pervasive criminal activity."
Immigration investigation can only be triggered by felonious activity. And ICE's own guidelines explicitly forbid traffic stops.
But you can't point out the law to Sheriff Arpaio: "Do you think I'm going to report to the federal government? I don't report to them."
Arpaio's January 4 response to the Justice Department was 29 pages of lawyers' brain vomit, lies, and threats.
On page one, Arpaio's attorneys open with a lie: "The good faith efforts of Sheriff Arpaio, MCSO personnel, and counsel to achieve compliance by voluntary means are undeniable."
Understand that the sheriff refused to cooperate with the Justice Department investigation, and the feds were forced to sue him.
Moreover, the basis of the ACLU lawsuit is racial profiling, the very substance of the Justice Department probe.
The destruction of evidence by the sheriff in the Melendres case, the refusal to turn over documents, the shredding of records, and the deletion of e-mails were so egregious that the court not only issued sanctions but declared that, in trial, the evidence destroyed would be assumed to augment the allegation of racial profiling.
All this destroyed evidence was at the core of the Justice Department investigation.
You cannot collaborate with a thug like Sheriff Arpaio. You can only indict.From day one, Sheriff Arpaio has bullied the defenseless.
In the beginning, his target was his prisoners.
As immigration divided America, he turned on Hispanics.
There is a reason federal-government regulations did not permit local police agencies to use traffic stops as a pretext to immigration enforcement; Sheriff Arpaio is the reason writ large.
His men showed up, 200-plus strong, outfitted in body armor, hidden beneath ski masks, armed with automatic weapons, accompanied by K-9 units and SWAT teams, and detained drivers with cracked windshields.
This is police-state terror. People with dim turn signals are not criminals.
In a shameless effort to appear tough on immigration — 1 million migrants have been deported — President Barack Obama and his Homeland Security director, Napolitano, allowed local police agencies to run roughshod and violate the feds' own guidelines.
Rather than indict the sheriff, they seek to deflect their own responsibility in this horror show by "collaborating" with Arpaio for reform.
According to a recent law school study, 3,600 United States citizens have been arrested by ICE.
In Phoenix, one-third of our citizens— not immigrants — are Hispanic and subject to the sheriff's demand: Are your papers in order?
Federal Judge Snow ordered that immigrants and citizens alike detained by the sheriff can sue for damages. But who will step forward to seek compensation when the federal government coddles Arpaio?
Sheriff Arpaio responded to the Justice Department's call for collaboration by issuing a threat: He demanded the name of every American who complained about his conduct.
If Mexican-Americans were not already sufficiently terrified, the sheriff wanted everyone to know: He was making a list.
Editor's note: The Justice Department's December press conference also explained that Sheriff Joe Arpaio went after his critics.
I'm one of those critics.
A week before the Justice Department announcement, I sat in San Francisco as the U.S. Ninth Circuit Court of Appeals reviewed the lawsuit New Times filed after the sheriff arrested and jailed me and my partner, Village Voice Media CEO Jim Larkin.
We'd written a story in 2007 exposing an Arpaio-inspired grand jury that demanded reporters' notes, as well as the identities of those who'd read our newspaper online.
The grand jury subpoenas were fraudulent. The prosecutor issued subpoenas without going to a grand jury.
New Times has contributed to ACLU since then.
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