Once again, the U.S. Department of Justice has disappointed us when it comes to reining in Sheriff Joe Arpaio's abuses of power, this time with a Neville Chamberlain-esque agreement that the Maricopa County Board of Supervisors approved on Wednesday.
The board unanimously voted to settle on three areas of dispute in United States v. Maricopa County: worksite raids, how the sheriff's office treats so-called Limited English Proficiency inmates in the jails, and Arpaio's retaliatory tactics against his critics, political opponents and anyone else who gets in his way.
In June, federal Judge Roslyn O. Silver issued a summary judgment in U.S. v. Maricopa County in favor of the DOJ on counts related to biased policing, which largely are covered in the ACLU's big civil rights case Melendres v. Arpaio.
Arpaio and his agency were found guilty of racial profiling county Latinos in a 2013 decision in Melendres by federal Judge G. Murray Snow.
The MCSO was ordered to stop, given a large number of reforms to enact, and placed under the scrutiny of a monitor to make sure those reforms got done.
Essentially, the plaintiff lawyers in Melendres, attorneys from the ACLU and the firm of Covington and Burling, had already succeeded in the discriminatory policing aspect of the case.
This, in turn, comprised more than half of the DOJ's June "win" in U.S. v. Maricopa County. Silver set a bench trial for August 10 to deal with the other issues involved.
After the BOS declared an armistice, Silver issued an order Wednesday, instructing the parties to file a joint statement by Monday, "setting forth what claims, if any, remain."
The most annoying part of this very annoying settlement agreement has to do with Arpaio's penchant for abuse of power under the color of law.
Silver teed up the issue for the DOJ when she denied Arpaio's request for a summary judgment on the retaliation claims.
Her June 15th order notes:
Arpaio does not contest that he and MCSO filed the lawsuits, submitted bar complaints, and performed the arrests the United States alleges. What Arpaio contests is the allegation that these actions were performed in retaliation for criticism he and his office received. In other words, that they were done with retaliatory animus. But the United States’ facts are sufficient to raise a reasonable inference that Arpaio’s actions were performed out of retaliatory animus. Arpaio’s conclusory denials do not defeat this evidence. Therefore, summary judgment will not be granted on these grounds.
In other words, Arpaio has animus aplenty, so whack away, DOJ!
Instead, how does the DOJ do justice to the judges, newspaper execs, political rivals, community activists, county employees and others who were wrongly arrested, jailed, harassed, and charged with crimes sans cause?
Laughably, it allows Arpaio to admit he's been a bad boy and write that he'll never do it again on a blackboard for all to see.
The agreement states that,
Within 30 days after the effective date of this Agreement, the Maricopa County Sheriff's Office (MCSO) will establish an official policy prohibiting retaliation against any individual for any individual's lawful expression of ideas in the exercise of the First Amendment right to the freedom of speech.
The Parties have agreed that the policy will read as follows:
It is the policy of the Maricopa County Sheriff's Office to respect the First Amendment rights of all individuals. MCSO personnel will not take action against any individual in retaliation for any individual's lawful expression of opinions in the exercise of the First Amendment right to the freedom of speech.
Boy, I feel safer already. I mean, just because Arpaio's office ran two bogus investigations on Judge Snow and his wife, in a blatant and ultimately futile attempt to conflict the judge off the Melendres case, and just because he's admitted to civil contempt of Snow's orders and is looking at possible criminal charges doesn't mean we can't trust the old fogey, right?
In the case of this new First Amendment "policy," there's no real oversight, and certainly no court-appointed monitor.
Arpaio promises to expose his deputies to this policy via the MCSO's briefing board, and "provide the United States with an affidavit or sworn declaration by an MCSO employee with authority to speak on behalf of MCSO and Sheriff Arpaio confirming that MCSO has issued the policy and briefing board, and will provide copies of same to the United States."
How incredibly lame. And how typical of the DOJ.
Some of us around here remember "Black Friday," August 31, 2012, when the local U.S. Attorney's Office announced at 5 p.m., at the start of a three-day weekend, that it was closing its criminal investigation into widespread abuse of power allegations by the sheriff's office and the county attorney's office, with no charges being filed.
What I wrote then reads like deja vu all over again:
"We all know crimes were committed. That is as plain as the bulbous Mr. Magoo nose on Joe's aged face. The feds have shown themselves unwilling and impotent to take on the biggest criminal in Maricopa County..."
Oh, death, where is thy sting?
The DOJ-Arpaio settlement also covers worksite raids, which the MCSO already has ceased doing. But should the sheriff decide to fire those up in the future, the DOJ would like to get a note about it from the MCSO.
To this point, the agreement states:
If a Worksite Identity Theft Operation occurs after the Effective Date of this Settlement Agreement, MCSO shall timely grant reasonable requests by the United States for information related to any such operation so that the United States may determine whether such operation was conducted consistent with Federal law and the United States Constitution.
How civilized, with pinky raised, no doubt.
But we are not dealing with a civilized individual in Joe Arpaio, much less a law enforcement agency that knows how to follow the orders of a federal judge.
For example, the monitor's most recent quarterly report states that the MCSO "made no appreciable gains [on compliance] during this reporting period."
The monitor further observes a continued "a lack of leadership at all levels of the Maricopa County Sheriff’s Office, and in particular, in the upper command ranks of the Office."
Regarding internal administrative investigations, the monitor writes that,
"In our review, we found that many of the cases were not thoroughly investigated, findings were not appropriate, discipline was not justified; and in the majority of cases, MCSO’s own policies were not followed."
So what confidence should we have that the DOJ's lackadaisical approach to the MCSO will work?
None. Zip. Zero. Nada. At least, as long as Arpaio and his Chief Deputy Jerry Sheridan remain in charge.
The part of the agreement describing the treatment of Limited English Proficiency inmates is detailed, and the DOJ's oversight here is more stringent than elsewhere in the agreement, but that is a pretty low bar.
In assessing compliance with the new LEP policies, the MCSO must grant "reasonable requests" by the DOJ for access to "documents, data, records and facilities, and interviews with MCSO personnel and inmates."
Moreover, the MCSO must allow the DOJ "a maximum of two visits" to MCSO facilities within a year after the agreement takes effect, so the DOJ can assess progress.
If Arpaio is out of office by then, maybe the new leadership will adhere to the agreement. Otherwise, the MCSO's past bad behavior is the best predictor of its future performance.
There is no way to polish this caca. The DOJ has failed to corral Arpaio's unconstitutional and often criminal behavior, leaving it up to entities such as the ACLU, private law firms, and the residents of Maricopa County to seek the "justice" that, ironically, is part of the DOJ's name.
County Supervisor Steve Gallardo, the only Democrat on the board, voted in favor of the DOJ-Arpaio settlement, but he did not sound pleased with the document.
"I was shocked to read what I've read," he told me. "I was expecting the Department of Justice would want more oversight over the sheriff's office. I was expecting more than what the [DOJ] has suggested."
He said he voted for the agreement in the hopes of avoiding another lengthy, expensive trial in federal court.
Similarly, Lydia Guzman, a longtime anti-Arpaio activist whose work helped ensure the victory in Melendres, told KJZZ's Jude Joffe-Block that she was disheartened by the settlement.
"After all of these years of doing research bringing victims to Department of Justice as well as gathering evidence, I feel like I've been cheated,” Guzman explained.
There is one positive out of this development, however: If there's no trial before Silver, then it will be full speed ahead on the second round of contempt proceedings before Judge Snow, which hopefully will result in a criminal referral for the prosecution of both Arpaio and his top henchman, Jerry Sheridan.
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