For Sheriff Joe Arpaio's 81st birthday, he's not getting 81 whacks on the fanny from federal Judge G. Murray Snow.
Rather, in a hearing today at the Sandra Day O'Connor U.S. Courthouse in downtown Phoenix, Snow signaled that he's inclined to give the aged autocrat something even less welcome, for the sheriff at least: a court-appointed independent monitor to enforce Snow's 142-page ruling in the ACLU's big racial-profiling case Melendres v. Arpaio.
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That ruling, filed May 24, found Arpaio and his deputies guilty as charged with prejudiced policing toward Latinos. As a result, Snow enjoined the MCSO from the practices that caused such blatant discrimination.
Today's hearing was held to discuss how to make the MCSO come to heel. At the outset, Snow indicated what he'd like to see in any draft consent decree, if both sides can agree to one.
Maintaining that he respected the sheriff's authority, the judge reminded the attorneys present that "the Constitution of the United States is supreme," and that he had the authority and the responsibility, "to ensure the constitutional rights of all residents of this county."
To this end, Snow explained: "It is my predilection to appoint an independent monitor."
Retraining of MCSO personnel "needs to take place," Snow added.
He insisted he would be the "final authority" on the actual instruction and training materials used. In fact, Snow said he might have to observe the retraining course himself to make certain it comports with his ruling.
He also stated that he would allow the MCSO to develop the training materials, though presumably with his oversight.
The MCSO will need much better record keeping, he stated, and be able to identify the persons its deputies stop as either Latino or non-Latino, without invading the driver or passenger's privacy. The judge wants these records available to the public.
Snow went on to correct a misinterpretation of part of his ruling by some in the public. He had not enjoined the MCSO from contacting U.S. Immigration and Customs Enforcement, if needed.
However, if the MCSO encounters someone they suspect of violating civil immigration law, they may not hold those persons. Nor may deputies detain them, waiting for ICE to arrive and take custody.
The MCSO can only hold persons suspected of committing federal or state crimes, including the violation of criminal immigration laws, according to Snow.
"[The sheriff's office] in my view cannot enforce civil immigration law," he stated, emphatically.
This is a key point, as the MCSO has been using race as one factor in detaining people on civil immigration violations. Snow's ruling enjoins them from persisting in that practice.
This leaves open the door for the worksite raids to begin again, as the pretext for the MCSO's Hispanic-hunting raids on businesses has been state ID theft and forgery statutes, not civil immigration law or the state employer sanctions law, which the MCSO is also enjoined from enforcing against Latinos suspected of "conspiring with their employer to violate."
Stanley Young, lead attorney for the plaintiffs in Melendres, told Snow that both sides have been talking with each other, noting that the U.S. Department of Justice had filed a "statement of interest" with the court, asking to participate in the creation of a consent decree, as the DOJ's broader lawsuit against Arpaio covers some of the same ground.
Young asked the judge to give the plaintiffs and the defense till mid-August to craft a proposed consent decree. His opinion was that it was "possible to come to an agreement."
Arpaio's lawyer Tim Casey said his side was also "trying to work for a consent decree."
Casey then went through several recent actions by the MCSO to comply with Snow's order, such as terminating the MCSO's so-called LEAR policy, which allowed deputies to hold people till ICE picked them up, without suspicion of a state or federal crime being committed
(Note: LEAR, which stands for Law Enforcement Agency Response Unit, is an ICE program, where a law enforcement agency may contact ICE and have them pick up an alien in the LEOs custody.)
Casey mentioned the end of Arpaio's immigration hotline and the removal of the ads on MCSO vehicles promoting that hotline. The Human Smuggling Unit had been "restricted" and was in "a new unit," he informed Snow.
And the sweeps?
"Those have not occurred since October of 2011 and they will not occur," said Casey with finality.
"The MCSO is out of the federal immigration enforcement business," he assured Snow at one point.
Casey claimed that the MCSO has adopted a definition of racial profiling set forth by the Commission on Accreditation for Law Enforcement Agencies. Moreover, the sheriff's office would be creating a new staff position dedicated to complying with the judge's order.
"We oppose a monitor," stated Casey, adding, "We believe that this court should be the arbiter of what is appropriate or not appropriate."
Which begs the question: Why not accept a monitor and forgo an appeal, if the buck stops with Snow?
A lesser sticking point between the two sides may be the way the race of a driver would be determined during a stop. The plaintiffs want to use the standard for such cases: i.e., relying on the observation of the officer, who would check a box indicating race or ethnicity on a form.
Casey objected, and wanted such records to rely solely on U.S. Census data indicating how people with various surnames self-identify.
Snow said it was too early to make a ruling on the issue, and gave them till August 16 to come up with, "a complete consent decree that will resolve this matter in all particulars."
If the parties cannot, they are to submit the matters they can agree on and the matters they cannot. Snow then set a hearing for August 30 at 9:30 and adjourned.
The courtroom was full to capacity. Spectators included the Reverend Al Sharpton, who sat next to Maricopa County Supervisor Mary Rose Wilcox. Sharpton told me he was in town for a speaking engagement and would be doing his TV show from here.
Outside, Arpaio attorney Tom Liddy stated that the defense would file a notice of appeal, but would not proceed until after August 30. He tried to put the blame for Arpaio's years of racial profiling on the training the MCSO's received from ICE.
Of course, that excuse ignores the fact ICE jerked Arpaio's 287g authority and brought in nativist lawyer Kris Kobach to train all 900 of Arpaio's gendarmes on immigration enforcement.
I asked Arpaio's Chief Deputy Jerry Sheridan if the MCSO owed Latinos an apology for all the years of racial profiling done by the sheriff's office.
"We feel very strongly we were not racially profiling," he told me. "That we were using the training given to us by ICE, under their 287g authority, under their federal authority, that we would not racially profile. That is one of the issues that we are contemplating appealing [in] the judge's ruling."
So Judge Snow is wrong?
"I'm not saying the judge is wrong," he replied. "We just happen to disagree with his ruling on a couple of issues."
He also signaled that the worksite raids, on hold since the judge's ruling, could continue.
"I think it is very clear, we are enforcing state law," he said of the raids. "We enter those businesses with search warrants and arrest warrants for people that have stolen people's identities and have violated state law. The judge made it quite clear that he's not taking the authority of the constitutionally elected sheriff to enforce state law."
One issue, mentioned above, is that the MCSO cannot hold people for pickup by ICE's so-called LEAR program, if the person is not suspected of committing a crime, state or federal.
But Sheridan didn't think it would be a problem for the MCSO in doing worksite raids.
"We could call ICE and tell them we're going to do it, they could come or not," he said. "But we cannot deal with civil illegal immigrants at all, period."
Would this mean cutting these people, in this category, loose?
"Absolutely," he said. "We have to do it."
Thing is, if the MCSO fires up the raids, it will indicate to the world that the MCSO is still in the immigration enforcement business, despite Casey's declarations to the contrary.
Try as it might, the MCSO cannot hide behind ID theft and forgery laws. Latinos in Maricopa County are being singled out for discriminatory treatment in the courts, after the MCSO collars them. They are overcharged with class four felonies, held nonbondable in order to secure a guilty plea, and then turned over ICE for deportation.
Lydia Guzman of Respect/Respeto has been at the forefront of the fight in the Melendres case against the MCSO's biased policing. When I informed her of Sheridan's statements, it did not surprise her.
"I have an inclination they are going to [go on] with the same old business, but describe it differently to the public as far as worksite raids go," she said.
And she had a message for the MCSO.
"I'm going to continue to monitor these worksite raids," she promised. "I'm going to document, I'm going to take pictures, and I'm going to collect as much information as possible. This case isn't over."
Indeed, the MCSO may be creating a further record of biased policing for themselves, if they continue the raids, as those raids by the MCSO's Criminal Employment Squad are mentioned in the DOJ's claim against the sheriff's office.
The DOJ's claim against the MCSO specifically mentions the agency's "[u]nconstitutional and unlawful targeting of Latino workers and illegal detention of Latinos, because of their race, color, or national origin, during worksite raids"
With the DOJ's lawsuit active in federal court, and the DOJ interested in participating in discussions leading to a consent decree, it would not be wise for the MCSO to begin raiding businesses again in order to round up brown folk.
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But when has the MCSO ever done the prudent thing?
Despite the general and well-deserved sense of victory in the anti-Arpaio camp among both attorneys and activists, it feels like we're just entering a new phase of the same struggle, one that, in this county, never seems to end.
One last observation: If the pro-Arpaio camp engineers some quixotic appeal of Snow's decision, and it loses, as it likely will, not only will it cost more to the taxpayers, it will solidify Snow's ruling as a precedent in the courts of the Ninth Circuit.
And that would be the richest of ironies.