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Joe Arpaio's "Corrective Statement" in Melendres Submitted to Federal Judge

Joe Arpaio's "Corrective Statement" in Melendres Submitted to Federal Judge

Not sure I'll believe this until I see Sheriff Joe Arpaio's geriatric scrawl on it, but reproduced at the bottom of this post is the so-called "corrective statement," filed by the MCSO's attorney Tim Casey in the ACLU's big civil rights lawsuit Melendres v. Arpaio.

You'll recall that on May 24, 2013, federal Judge G. Murray Snow essentially found the MCSO guilty of racially profiling Latinos during traffic stops and ordered that this unconstitutional activity cease.

Snow issued an injunction in October, detailing what the MCSO would have to do to comply with his May judgement.

In January, Snow appointed former Rochester, NY police chief Robert Warshaw as his monitor, to make sure that his order is followed.

Read the draft "corrective statement" submitted by MCSO lawyer Tim Casey.

But Arpaio is a hard case, and his command staff ain't much better. Since Snow's ruling and final injunction, Arpaio, his Chief Deputy Jerry Sheridan, and most recently Deputy Chief David Trombi have all been caught belittling and mischaracterizing the judge's findings. (Note: Here, "mischaracterizing" is a polite term for "spewing self-serving whoppers.")

Read MCSO counsel Tim Casey's averral that Arpaio is prepared to sign the corrective statement.

So Snow ordered that the defense work with the plaintiffs to come up with a "corrective statement," outlining the MCSO's gaffes and relating what Snow's decision actually says.

Last week, Casey filed "the parties' counsels' agreed upon draft corrective statement," and it is a particularly delicious document, as Arpaio will no longer be able to claim, as he did in a recent fundraising letter, that accusations of racial profiling against his office are "unfounded."

Read the MCSO's proposed schedule for court-ordered testing and training.

Moreover, the statement makes clear that not only are Arpaio and the MCSO guilty as sin, but even the MCSO's appeal to the Ninth Circuit is limited in scope.

Check this lovely passage:

Based on the evidence presented at trial, the Court found that the MCSO has violated the Fourth and Fourteenth Amendment rights of Latinos because the MCSO used race or ethnicity in conducting traffic stops.

We are appealing the court's order only as far as it covers traffic stops outside of saturation patrols. We are not appealing the Court's findings that MCSO violated the constitutional rights of Latinos during saturation patrols. That conclusion of the Court will not be altered by the appeal even if the MCSO prevails on that appeal.

 

Snow still has to approve the document, which ultimately will be transmitted to all MCSO personnel.

But Casey, in a cover letter to Snow, noted that,

"Undersigned counsel understands from a telephonic conversation this afternoon with MCSO Chief Jack MacIntyre that Sheriff Arpaio and Chief Deputy Sheridan are agreeable to signing Exhibit 1 as written if approved by the Court."

Read the transcript of the April 3 status conference before Judge Snow.

Thus, making this a historic document, even more, in some ways, than Snow's judgement and subsequent orders. In it, the MCSO admits guilt, and instructs its deputies to abide by the court's ruling.

It includes such blanket statements as, "It is not a violation of state or federal criminal law to be in this country without authorization," and, "Race or ethnicity, including Latino or Hispanic ancestry or appearance, cannot be used in forming reasonable suspicion or probable cause."

If Arpaio or his supporters ever try to spin what happened in Melendres, this document can be thrown in their faces. Once Arpaio signs it, it will become the instant rebuttal to all of his lies.

In other words, his own signature will shut him up.

I reproduce the document below and encourage all to read it.

I'm also linking some new info about planned training for MCSO deputies on how not to violate the constitutional rights of those they stop.

One problem right off the bat: There are too many Arpaio hacks, such as Sheridan and Deputy Chief Jack MacIntyre, listed as proffered "instructors."

Hopefully, these flunkies will be weeded out by Snow, who during the last hearing in Melendres, promised to observe some of the training sessions himself.

 

The MCSO's Draft Corrective Statement

This statement concerns the federal class action lawsuit, Ortega Melendres v. Arpaio, a constitutional challenge to conduct by our agency, the Maricopa County Sheriff s Office.

There have been several important court orders in the Ortega Melendres case. First, on December 26, 2011, the federal district court granted partial summary for the Plaintiff class, holding that the MCSO was violating the Fourth Amendment by detaining individuals based solely on suspicion that they were in the United States without authorization.

Second, on May 24, 2013, the federal district court issued Findings of Fact and Conclusions of Law, based upon the two-week trial in the summer of 2012. Among other things, the court held that the MCSO had violated the Fourteenth Amendment of the U.S. Constitution by targeting Latinos for traffic stops and had violated the Fourth Amendment by detaining Latinos without a valid legal justification.

On October 2, 2013, the Court issued a permanent injunction as a remedy for the constitutional violations. This injunction order includes many changes to our policies and practices, and appoints an independent monitor to oversee our compliance with the court's orders.

Pursuant to the March 27, 2014 Order of the Honorable G. Murray Snow, United States District Court Judge, the following is a summary of the Court's Findings and Fact and Conclusions of Law dated May 24, 2013 and the Court's Supplemental Permanent Injunction/Judgment Order dated October 2, 2013.

This summary shall be distributed to all MCSO personnel to identify and correct errors and misinformation given by MCSO personnel concerning such Orders.

Specifically, Chiefs Sheridan and Trombi incorrectly stated that the Court's factual basis for its conclusion that the MCSO violated the Fourteenth Amendment was based solely on: (a) the conduct of just two or three MCSO deputies that relied on ICE training that authorized the use of race or ethnicity as one factor among many to determine a person's immigration status; and (b) the erroneous statement that the Court found that the MCSO detained Hispanic drivers fourteen (14) seconds longer than non-Hispanic drivers.***

In fact, these were not findings in the court's order, and Chiefs Sheridan and Trombi erroneously mischaracterized the order.

This statement is intended to serve as a summary of the key provisions of these orders, it is not intended to replace these orders. As such, copies of the aforementioned orders are available on the MCSO website, at its homepage.

(***Testimony by expert Ralph Taylor, Ph.D. for the Plaintiffs in the Melendres trial included testimony that Hispanic drivers were detained fourteen percent (14%) longer than non-Hispanic drivers.)_

Melendres v. Arpaio: Summary of Findings

On May 24, 2013, the Court, in a 142-page written order, made the following findings of fact and conclusions of law:

MCSO Deputies Do Not Have Authority to Enforce Federal Civil Immigration Law

The MCSO has no authority to detain people based only on a belief (whether reasonable suspicion, probable cause, or more) that such persons are in this country without authorization.

The MCSO lost authority to enforce the civil administrative aspects of federal immigration law upon revocation of its 287(g) authority in 2009.

It is not a violation of state or federal criminal law to be in this country without authorization.

The "LEAR" policy as described by the court impermissibly required MCSO deputies to detain persons based only upon suspicion of unauthorized presence in the United States, without any basis to believe the person had committed a crime. Further, MCSO deputies impermissibly used race or ethnicity as an indicator of unlawful presence when applying the "LEAR" policy.

A policy requiring a deputy ( I ) to detain persons she or he believes only to be in the country without authorization, (2) to contact MCSO supervisors, and then (3) to await contact with ICE pending a determination how to proceed, would result in an unreasonable seizure under the Fourth Amendment to the Constitution.

In the absence of a reasonable suspicion that a crime has been committed, the MCSO lacks authority to engage in a detention of someone pending contact with ICE.

The extension of a traffic stop violates the Fourth Amendment prohibition against unreasonable seizures if the deputy does not have reasonable suspicion that the individual occupants of the vehicle are engaging in criminal conduct. Without such additional legal justification, traffic stops cannot be prolonged beyond the time it reasonably takes to deal with the traffic violation.

The MCSO mistakenly believed that state and local law enforcement officials, even in the absence of 287(g) authority, had the general/inherent power to investigate and airest violators of federal civil immigration violations such as unlawful presence in the United States.

The MCSO mistakenly instructed its deputies that mere unlawful presence in the United States was a crime rather than a civil violation.

The MCSO impermissibly prolonged traffic stops to investigate the immigration status of the occupants, detaining the individuals for longer than the amount of time necessary to dispose of the traffic infraction that resulted in the stop.The extension of stops in this manner violated the Fourth Amendment rights of the occupants of the vehicles.

Suspicion of Unauthorized Presence Also ls Not An Adequate Basis for Detention Under Arizona State Law

The knowledge that a person is in the country without authorization does not, without more, provide sufficient reasonable suspicion that a person has violated Arizona criminal laws such as the Arizona Human Smuggling Act. The knowledge that a person is in the country without authorization does not, therefore, by itself justify a Terry stop for purposes of investigative detention.

The Arizona Employer Sanctions law does not provide criminal sanctions against either employers or employees and is not a sufficient basis on which the MCSO can arrest or conduct Terry stops of either employers or employees.

The MCSO Impermissibly Used Race or Ethnicity In Making Law Enforcement Decisions

The district court found that the MCSO, as a matter of policy and practice, impermissibly used race or ethnicity in conducting traffic stops, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The use of race or ethnicity as a factor, even as one factor among others, in arriving at reasonable suspicion or forming probable cause to stop or investigate persons violates the Fourth Amendment and the right to equal protection under the Fourteenth Amendment to the Constitution and Title VI of the Civil Rights Act of 1964. The only exception is when there is a specific suspect description that includes the race or ethnicity and other characteristics of the suspect of a particular crime.

The MCSO's written operational plans and policy descriptions improperly informed deputies that, in the context of immigration enforcement, the MCSO could use the ICE indicators which incorrectly indicated that deputies could consider race or ethnicity as one factor among others.

MCSO deputies were improperly instructed regarding investigating citizenship.

The consideration of race or ethnicity by iviCSO deputies in determining whether to take a law enforcement action was unconstitutional. This is true despite any training to the contrary received from ICE.

ICE did provide erroneous training that race or ethnicity can be considered as one factor among others in forming reasonable suspicion or probable cause about immigration status. But the district court also found that MCSO had an independent policy to consider race or ethnicity in making law enforcement decisions, from the planning criteria for saturation patrols, to individual traffic stops and questioning. All such policies relying on the use of race or ethnicity are unconstitutional.

Sheriff Arpaio's public statements about the Human Smuggling Unit ("HSU") operations and the saturation patrols signaled to MCSO deputies that the purpose of those operations and patrols was to arrest people who were not legally present in the United States.

Such statements may have created the impression both in and out of the MCSO that considering a person's race or ethnicity when evaluating whether that person was legally present in the United States was appropriate and endorsed by the MCSO. Race or ethnicity, including Latino or Hispanic ancestry or appearance, cannot be used in forming reasonable suspicion or probable cause.

The MCSO impermissibly used race or ethnicity as one factor in selecting the locations for at least some day labor operations, small­ scale saturation patrols and large-scale saturation patrols.

The MCSO impermissibly used race or ethnicity as a factor in choosing vehicles to pull over during such operations.

The MCSO impermissibly used race or ethnicity as a factor in determining whom to investigate and arrest during such operations.

The MCSO was more likely to investigate the identities of Hispanic passengers than non-Hispanic passengers during small-scale saturation patrols.

The MCSO appeared to conduct saturation patrols and day laborer operations in response to citizen complaints, including those with racial or ethnic statements.

The purpose of the MCSO's large-scale saturation patrols was to enforce immigration laws. The operations targeted Latinos because MCSO policy and practice was to use race or ethnicity as an indicator of unlawful immigration status.

The court cited to statistics showing that MCSO's practices affected Latinos. Based upon arrest reports, nearly one-half or more of the arrests from large-scale saturation patrols were of persons not in the country legally.

Based upon a surname analysis, 71% of the arrests from large-scale saturation patrols were of Hispanic persons.

During large-scale patrols, MCSO deputies arrested a disproportionate number of persons with Hispanic surnames.

Injunctive Relief

Based on the Court's findings, the Court issued several injunctions. MCSO personnel are enjoined from, meaning MCSO personnel cannot do any of, the following:

Detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization.

Following or enforcing "LEAR" policy, as defined by the court, against any Latino occupant of a vehicle in Maricopa County (i.e., holding a person to turn over to ICE or Border Patrol when no state or federal crime exists to charge that person).

Using race or ethnicity or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant.

Using race or ethnicity or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization.

Detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law.

Detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present.

Detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

On October 2, 2013, the Court, in a 59-page written order, which ordered the following supplemental injunctive relief to ensure MCSO's compliance with the Court's May 24, 2013 Order:

The MCSO must revise its policies and procedures in various ways to ensure that none of the forgoing conduct occurs.

The MCSO must create an approved template for pre-planned operations that ensures that they are not conducted in a discriminatory or unconstitutional manner.

The MCSO must provide additional training in the areas of bias-free policing, detentions/arrests, and enforcement of immigration-related laws.

The MCSO must provide additional training to supervisors.

The MCSO must collect certain data regarding traffic stops, including the deputy 's perceived impression, based upon the deputy 's best effort, of the race and ethnicity of the driver and passengers after every stop without asking such persons about their race or ethnicity.***

The MCSO must review and analyze the collected traffic stop data.

The MCSO must eventually ensure that all traffic stops are recorded.

The MCSO must implement and provide training on an early identification system ("EIS") to identify and respond to potentially problematic behaviors, including racial profiling, unlawful detentions and arrests, and improper enforcement of immigration-related laws.

The MCSO shall ensure that no more than 12 deputies are supervised by a single supervisor and implement additional procedures for supervisors.

The MCSO must ensure that all complaints regarding misconduct are tracked and investigated.

A monitor shall be appointed by the Court to make recommendations to the MCSO and the Court regarding the MCSO's compliance with the Court's orders.

It is imperative that every employee of MCSO make his or her best effort to comply with all of the Court's orders, including the requirement that deputies record data about their traffic stops.

Recording Racial Data

On October 18 and 19, 2013, the MCSO conducted a saturation patrol. In a briefing prior to that patrol, two misrepresentations were regrettably made by MCSO leadership. Chief Sheridan stated that the Court ruled against MCSO on the Fourteenth Amendment claim because only two deputies used race or ethnicity when making law enforcement decisions. That was not accurate. The Court made no such finding. Chief Sheridan regrets making that statement and has since become familiar with the details of the Court's May 24, 2013 Findings of Facts.

(***Although not required by the Court's Order, the MCSO has directed deputies to also use their best efforts to record their perceived impression of the race and ethnicity of the driver and passengers at the time every traffic stop is initiated.)

Chief Sheridan also stated that the Court ruled against MCSO on the Fourth Amendment claim because it stopped Hispanic drivers in cars 14 seconds longer than non-Hispanic drivers. That also was not accurate. The Court made no such finding. Chief Sheridan regrets making the statement as well.

This Corrective Statement intends to correct those misstatements, and any other statements regarding the contents of the Court's Order dated May 24, 2013 that were not accurate.

In addition, Chief Sheridan made comments about the new requirement that MCSO deputies record their subjective assessment of drivers/passengers' race or ethnicity, amongst other data, during traffic stops. Specifically, the Chief Deputy said it could be difficult for deputies to accurately identify such information and stated that deputies could use the "unknown" field in recording race or ethnicity.

The Court on March 24, 2014 stated that it had concerns that such comments may have suggested to the deputies that they were not obliged to use their best reasonable efforts to determine and record the race or ethnicity of those stopped.

In order to correct any misimpression from Chief Sheridan's statement, and so it is clear, the Court's Order requires deputies to make their best assessment of the race or ethnicity of each individual stopped. Although a deputy, at times, may not be absolutely certain of an individual 's race or ethnicity, MCSO deputies are certainly capable of making informed decisions regarding the apparent race or ethnicity of individuals they encounter.

To dispel any possible doubt, let us be clear: all MCSO personnel must use their best efforts to comply with all aspects of the Court's October 2, 2013 Injunction Order at all times. In particular, deputies are to give their best effort in documenting their perceived impression of the race or ethnicity of the driver and any passengers after every stop.

Deputies must, in all cases, record what they perceive to be the race or ethnicity of the individual( s) as accurately as possible on the contact forms.

The "unknown" field should be used only in the limited circumstances where a deputy cannot determine what he or she (the deputy) perceives as the race or ethnicity of an individual based on all available information to him or her at the time.

MCSO's Appeal

The MCSO has filed an appeal. However, MCSO is not appealing all of the Court's findings that the MCSO violated the United States Constitution. Based on the evidence presented at trial, the Court found that the MCSO has violated the Fourth and Fourteenth Amendment rights of Latinos because the MCSO used race or ethnicity in conducting traffic stops.

We are appealing the court's order only as far as it covers traffic stops outside of saturation patrols. We are not appealing the Court's findings that MCSO violated the constitutional rights of Latinos during saturation patrols. That conclusion of the Court will not be altered by the appeal even if the MCSO prevails on that appeal.

The MCSO is also appealing the scope of the injunctions put in place by the Court. Specifically, we are arguing that the Court's injunction goes too far in regulating regular patrols. Regardless of the appeal, the Court's injunction is the law and must be obeyed during all traffic stops.

While the MCSO disagrees with some of the Court's findings, the Court's Orders are the law. All MCSO personnel are hereby directed to fully comply with the Court's Orders.

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