Following Monday's hearing before federal Judge G. Murray Snow, where Snow meted out a verbal shellacking to Sheriff Joe Arpaio and his Chief Deputy Jerry Sheridan, Arpaio briefly appeared outside the Sandra Day O'Connor U.S. Courthouse, reminding reporters that Snow's ruling against him in Melendres v. Arpaio was under appeal.
This was echoed by Tom Liddy of the Maricopa County Attorney's Office, who spoke for the defense team. But what neither Arpaio nor Liddy explained is that the sheriff's appeal does not challenge the judge's final order or his findings of facts and conclusions of law within the context of Arpaio's notorious immigration sweeps.
That's right, Arpaio's legal beagles are not contesting Snow's judgment that the MCSO racially profiled Latinos and violated their rights under the Fourth and Fourteenth Amendments to the U.S. Constitution during the sweeps.
Rather, Joe's appeals attorney, Eileen Dennis GilBride of the firm Jones, Skelton, Hochuli, writes in the opening brief to the U.S. Ninth Circuit Court of Appeals that Snow's order is "impermissibly overbroad" because it covers "regular patrol duties" as well as the MCSO's saturation patrols.
GilBride argues that:
"The judgment should be vacated to the extent it covers regular patrol activities, and the class should be partially decertified and limited to `All Latino persons who, since January 2007, have been or will be in the future, stopped, detained, questioned or searched by MCSO agents during a saturation patrol while driving or sitting in a vehicle on a public roadway or parking area.'"
GilBride contends that most of the evidence of racial profiling (at least, the evidence the MCSO did not destroy) is from the sweeps, therefore, Snow's findings and final order should be limited to MCSO activity within the saturation patrols.
"As is noted above," writes GilBride, "Defendants are not challenging the court's findings and conclusions with respect to immigration-related saturation patrols. They do challenge the injunction as it relates to MCSO regular patrols...
"Leaving aside the saturation patrols, the record lacks evidence that MCSO has a pattern, practice, or policy of violating Hispanics' Fourth or Fourteenth Amendment rights during regular patrols." (Italics, mine.)
So, GilBride maintains that, "The judgment and injunction should be vacated as to all activities outside of saturation patrols."
She insists that the plaintiffs' argument for "injunctive relief regarding regular patrol duties," solely hinges on the opinion of a statistical expert for the plaintiffs, who testified during the 2012 trial that, "Hispanics suffer the effects of the MCSO's discriminatory actions on non-saturation patrol days."
Essentially, the MCSO's lawyers are conceding that deputies racially profiled Latinos, but only during the sweeps.
The counter to this argument can be found in Judge Snow's "Findings of Fact and Conclusions of Law," issued May 2013.
For instance, before U.S. Immigration and Customs Enforcement rescinded the MCSO's 287(g) immigration authority for 100 deputies in the field (later, ICE decertified around 60 in the jails), plenty of non-287(g) deputies participated in the saturation patrols.
"During those patrols," writes Snow in his historic May judgment, "especially the large-scale saturation patrols, the MCSO attempted to leverage its 287(g) authority by staffing such operations with deputies that both were and were not 287(g) certified."
"ICE has since revoked the MCSO's 287(g) authority. In response, the MCSO trained all of its officers on immigration law, instructed them that they had the authority to enforce it, and promulgated a new `LEAR' policy. The MCSO continues to follow its LEAR policy, which requires MCSO deputies to detain persons believed to be in the country without authorization but whom they cannot arrest on state charges."
In fact, after ICE revoked Joe's 287(g) authority in the field, Arpaio brought in, of all people, nativist politician Kris Kobach (currently Kansas' Secretary of State) to mis-train deputies in immigration law.
MCSO deputies wrongly believed they could use race as one factor in forming reasonable suspicion that someone may be in the country illegally. Arpaio himself, on more than one occasion, made statements to the media to this effect.
Even under the 287(g) program, the MCSO was improperly using pretextual stops regarding minor traffic violations to pull over Latinos and question car occupants about their immigration status.
After its 287(g) power was jerked, the sheriff's office adopted a cockamamie idea that all cops had "inherent authority" to pursue civil immigration violations.
The following excerpt from Snow's May ruling, reveals not only the depth of the MCSO's stupidity on this subject, if makes clear that as far as Arpaio was concerned, all of his deputies were immigration enforcers, with or without 287(g).
Moreover, sometime before July 15, 2009, Chief Sands asked Sgt. Palmer to conduct legal research into whether the MCSO had authority to enforce immigration law absent the authorization of the Department of Homeland Security.
Sgt. Palmer conducted an internet search, and copied his findings into an e-mail to Chief Sands on July 15, 2009. The e-mail stated that "State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without INS knowledge or approval, as long as they are authorized to do so by state law."
It continued, "[t]he 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws." The e-mail provided as a citation for this proposition "8 U.S.C. § 1324(a)(1)(A)(iv)(b)(iii)."36 That section of the United States Code did not then and does not now exist.
Nevertheless. it apparently provided the impetus for Sheriff Arpaio's public statements that the MCSO maintained the authority to make immigration arrests despite ICE's suspension of 287(g) authority. In his interview with Glenn Beck a few days after the effective date of the ICE revocation, Sheriff Arpaio stated that MCSO officers retained the authority to enforce federal immigration law because it had been granted by "that law in 1996, part of the comprehensive law that was passed, it's in there."
In such interviews the Sheriff stated that the revocation of 287(g) authority did not end the MCSO's attempts to enforce federal immigration law. At the time of the revocation the MCSO had approximately 100 field deputies who were 287(g) certified. Shortly after the revocation of his 287(g) authority, Sheriff Arpaio decided to have all of his deputies trained on illegal immigration law. According to the MCSO, that training enabled all MCSO deputies to make immigration arrests. An MCSO news release dated March 18, 2010 notes:
"Arpaio recently ordered that all 900 sworn deputies be properly trained to enforce illegal immigration laws, a move made necessary after the recent decision by Department of Homeland Security to take away the federal authority of 100 deputies, all of whom had been formally trained by ICE (Immigration and Customs Enforcement) to enforce federal immigration laws.
"'They took away the ability of 100 federally trained deputies to enforce immigration laws, and so I replaced them with 900 sworn deputies, all of whom are now in a position to enforce illegal immigration laws in Maricopa County,' Arpaio said."
By his own words, and those of his deputies, Arpaio is damned. Snow also discusses at length how deputies testified during the 2012 Melendres trial that they would follow the same protocols regarding questioning vehicle occupants during regular patrols as they would during sweeps.
And GilBride would have us believe that the MCSO's prejudiced policing toward Latinos has been magically confined to Arpaio's sweeps?
The evidence does bear this out.
Additionally, GilBride argues that the MCSO should be dismissed from the lawsuit because it is a "non-jural" entity. That is, one that cannot sue or be sued.
Even if Arpaio's attorneys were to prevail on this minor point, Arpaio himself would remain a defendant in the lawsuit in his individual and official capacity.
There's also some entertaining language in the appeal brief concerning the community outreach plan ordered by Judge Snow, which Arpaio wants no part of.
GilBride would have us believe Arpaio's First Amendment rights are being violated.
"The court's order forcing Sheriff Arpaio to hold community meetings, `make reasonable efforts to address community members' concerns during meetings and afterwards,' and to communicate to the public information regarding MCSO operations and patrols, runs afoul of the Sheriff's First Amendment rights.'"
Hey, judge, you can't make Arpaio or his deputies serve the community or rub shoulders with the Latino residents, if they don't want to. It's Joe's First Amendment right to be a bigot!
Um, maybe Joe can personally be a bigot if he wants, but he cannot promulgate bigoted policies and engage in discriminatory policing toward one-third of Maricopa County's population.
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No way, Jose.
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