Federal Judge Slams MCSO Policy, Says He'll Make Ruling in Melendres Racial-Profiling Case Within Two Days

Lawyer Stanley Young, (left), said he was "encouraged" by a judge's comments in today's hearing on a racial profiling lawsuit against Sheriff Joe Arpaio's office. Next to Young is Dan Pochoda of the American Civil Liberties Union of Arizona.
Lawyer Stanley Young, (left), said he was "encouraged" by a judge's comments in today's hearing on a racial profiling lawsuit against Sheriff Joe Arpaio's office. Next to Young is Dan Pochoda of the American Civil Liberties Union of Arizona.
Image: Ray Stern

U.S. District Judge G. Murray Snow today criticized the policies of the Maricopa County Sheriff's Office in a lawsuit alleging racial profiling by deputies, and says he'll make a decision in one or two days.

Overall, this morning's hearing in the Ortega Melendres vs. MCSO lawsuit seemed to go well for the plaintiffs in the case, who say they're victims of Sheriff Joe Arpaio's pattern of civil-rights violations.

The four-year-old case highlights the evidence that Arpaio has run race-based investigations and generally makes life tougher for the Valley's Hispanic population, all with the goal of appeasing his right-wing base.

The plaintiffs seek an injunction they hope would end Arpaio's race-based practices.

Today's hearing came just days after the U.S. Department of Justice announced findings that the MCSO routinely and intentionally targets Hispanics. In a probe that began in 2008, the feds said they came to the conclusion that Arpaio oversees the worst racial profiling by a police agency in U.S. history.

Stanley Young, a lawyer for Covington & Burling, (the firm that's representing the plaintiffs along with the American Civil Liberties Union of Arizona and MALDEF, the Mexican American Legal Defense and Education Fund), said he thought today's hearing was "encouraging in a number of respects."

In particular, he noted that Snow asked "difficult questions" about MCSO's practices.

As we reported earlier today, Snow hammered Arpaio's lawyer, Timothy Casey, on the notion that deputies could detain someone to investigate suspected violations of the state's human smuggling law based only on the reasonable suspicion that one part of the law has been triggered.

Arpaio admits his deputies have no authority to enforce federal civil violations, and that being in the country illegally is a civil violation, not criminal. Yet deputies get around this legal line in the sand by claiming that since being in the country illegally is an element of the state crime of human smuggling, deputies can detain someone based on the suspected civil violation in order to gather evidence of the suspected crime.

Casey said the theory is well supported by case law, but Snow disagreed.

"I think you're wrong on that point, Mr. Casey," Snow said, threatening that he might issue an order to prevent MCSO from exercising that policy.

Young pounced on that weakness when it was his turn to speak, emphasizing that the "one element" used to justify the detention of a suspected human smuggler cuts to the heart of the racial-profiling allegations in the Melendres case -- because the suspicion that the person is in the country illegally is based on the person's appearance.

The policy is wrong because "you cannot use race as a factor" this far from the border, in a major urban area with a strong Hispanic population, Young said.

Young spent some time running down the examples of how Arpaio himself sets the tone his office and how the sheriff personally ordered action based on letters from local bigots.

For example, Arpaio told a letter writer in August of 2008 that he'd look into complaints about Sun City McDonald's workers speaking Spanish, and passed along the letter to Deputy Chief Brian Sands with the note "for our operation." An immigration sweep was soon conducted in Sun City.

Tom Liddy, a lawyer for the Maricopa County Attorney's Office helping to defend Arpaio's office, denied that the sheriff told anyone to look into the matter -- a denial that's directly contradicted by the evidence.

New Times previously reported on the contents of some of these letters.

Young mentions how a woman wrote to Arpaio that he has the right to stop people based on their accents or skin color, and said that when her Italian mother was profiled by authorities during World War Two, it was "the right thing to do."

Arpaio told the woman in a handwritten note that he enjoyed the story about her mom and was happy for the woman's support. In another letter, a bigot mentions the "dark skin" of some illegal immigrants and begs the sheriff to come to north Phoenix and "round them all up."

Arpaio wrote to Sands to "have someone handle that," Young said.

"This uncontested evidence shows the racial motivation," Young argued, adding that the law doesn't say the plaintiffs have to prove that race was the only reason to initiate enforcement actions. If race was just one of the reasons, the action violates the 14th Amendment against equal protection, he said.

Snow is weighing several options for his decision.

He could decide to set a date for a bench trial in the Melendres case, something that the plaintiffs didn't want. If that happens, says Casey, it'll show that the plaintiffs' arguments have so far failed to convince the judge.

Of course, while that may be true, the judge could always rule in favor of the plaintiffs later.

Snow said he would expedite the case, in the event of a trial, because it's been going on so long already.

The plaintiffs are asking instead for a summary judgment in their favor and an injunction against Sheriff Joe Arpaio's office from committing racial profiling.

At a Q&A after the hearing, Young told reporters that if Snow grants the injunction, court-appointed monitors would oversee new training for deputies and a record-keeping system that would prevent Arpaio's troops from racially profiling suspects.

Arpaio's lawyers deny that the sheriff and his deputies ever committed racial profiling, so enforcing an injunction could be tricky.

The office doesn't play fair -- and MCSO proved it in this case with the destruction of evidence like e-mails and reports on Arpaio's immigration sweeps. Snow ordered sanctions against the MCSO last year because of the destroyed evidence.

Snow said he's still not satisfied that Arpaio has turned over all records that might be pertinent to the case.

Young said today that although the lawsuit was filed in 2007 and the MCSO was under orders to preserve documents, a deputy was trashing e-mails possibly relevant to the case in late 2009.

When we asked Casey about that, he emphatically denied it. So we double-checked with Young, who assured us it was the case. When we asked Casey again, he said he wasn't really sure.

As New Times reported previously (see the above link on the sanctions article), that officials at MCSO:

... copped to the document destruction, as well as to not preserving all e-mails pertaining to the dragnets, as they should have been doing.

Deputy Chief Jack MacIntyre attempted to take the fall in an affidavit in which he stated that he simply "forgot" to forward on the request for documents that had been relayed by ... Casey.

Maybe Arpaio figures he doesn't need credibility when he can count true believers like his favorite letter writers among supporters.

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