Joe Arpaio's Hate Campaign Against the Undocumented Persists Despite New Rules
Photo by Dennis Gilman
No one would call the sheriff's lawyer, Tim Casey, a maestro of spin, but his response to federal Judge G. Murray Snow's final order in the ACLU's racial-profiling lawsuit, Melendres v. Arpaio, was a little like painting a smiley face on day-old road kill.
Arpaio still is the jefe, Casey told several news outlets, and the monitor Casey fought so hard against -- the one Snow's order insists upon -- will have "absolutely no veto power."
Which sounds like a significant point, unless you understand that no one ever sought "veto power" for the monitor who will act as Snow's eyes and ears in the execution of his detailed, 59-page order.
In fact, Casey pulled this straw man out of his briefcase on August 30, the last time both sides in Melendres met before Snow's October 2 injunction.
Snow was having none of it.
"Where in that procedure, where in the proposed order ... does it give the monitor any veto authority over Joe Arpaio's operational decisions?" Snow demanded of Casey.
"It does not," Casey had to admit. "None of it does, either in our version or in the plaintiffs' version."
Snow, in his order, makes clear that he is the "ultimate arbiter of compliance" in Melendres, as you would expect him to be. If the parties cannot resolve any issues with the monitor, "the parties may submit their grievances to the court for a resolution."
And, like a spoiled brat who refuses to obey his babysitter because she isn't Mommy or Daddy, the Maricopa County Sheriff's Office risks a spankin' when the parents get home, or in this case, when Snow has to lay down the law -- yet again -- to a recalcitrant Arpaio.
Because the monitor will have "the duties, responsibilities, and authority conferred by the court," according to Snow's order.
The MCSO must grant the monitor, which could be an individual or a team, appropriate office space and equipment. And the Sheriff's Office must allow the monitor "full and direct access to all personnel, documents, facilities ... and meetings."
That access includes "all records and information relating to criminal investigations," and should the MCSO decide to do a "pre-planned operation" (you know, like a sweep) involving 10 or more personnel, the MCSO must produce a "written protocol," outlining most aspects of the operation and provide it in advance to the monitor.
Afterward, the MCSO has to turn over extensive data to the monitor and the plaintiffs regarding what was done and who was stopped and arrested, among other things.
The MCSO's new court-appointed czar will review the massive amount of data that the MCSO now will have to collect on all its traffic stops, perform "audits, compliance reviews, and outcome assessments," and examine new policies and procedures insisted upon by the court.
Acting on behalf of Snow, the monitor will evaluate training materials, curriculum, and instructors for the extensive retraining of all MCSO deputies (including upper-echelon) and all posse members on the U.S. Constitution's Fourth Amendment prohibition against unreasonable search and seizure. And the monitor will evaluate "comprehensive and interdisciplinary training [for deputies and posse members] on bias-free policing."
Quarterly and annual reports will be submitted by the monitor to the court as a means of ensuring "the defendants' implementation of and compliance with this order," which will run "against the sheriff in his official capacity and the MCSO" until the Sheriff's Office has achieved and maintained full and effective compliance "for no less than three years."
The parties are supposed to agree on a monitor within 60 days. If they can't, they must submit names of candidates within 70 days.
How much will a monitor cost? According to a report issued in July by the Police Executive Research Forum -- a report submitted to the court by Casey -- the cost could be anywhere from $1 million to $2 million a year.
County Attorney Bill Montgomery, Arpaio's partner in immigration enforcement.
Photo by Dennis Gilman
But monitors often continue past their initial assignment, serving several additional years, and the cost of a monitor doesn't include the cost of instituting reforms that Judge Snow has outlined.
For instance, within two years, all MCSO patrol vehicles must be equipped with video cameras. Specialized units enforcing state immigration-related statutes must have the cams within the next 180 days.
Then, there's the cost of the training and any costs associated with the court-ordered community-outreach program. And there are the ongoing legal fees, as Arpaio will need an attorney to represent him for the three-plus years the order will last.
So far, the lawsuit has cost the county more than $1 million to defend against, and though the plaintiffs in Melendres didn't seek monetary damages, they are due legal fees, which the county must pay, as the loser always does.
No word on how much the team of lawyers representing the plaintiffs will bill, but whatever it is, that number will go up if Arpaio continues to pursue a futile appeal to the U.S. Ninth Circuit Court of Appeals, of which Casey already has filed notice in federal court.
However, Casey has signaled that Arpaio won't seek a stay of Snow's order, which is smart, as the legal experts I've spoken to say there's little chance either Snow or the appeals court will issue one.
So as the appeals process plays out, the MCSO must comply with the order, and Casey says it will. If the County Board of Supervisors has a lick of sense, it will tell Joe that it's not going to fund such a foolish appeal to bolster Joe's wounded pride.
Thing is, County Attorney Bill Montgomery successfully has barred Supervisor Mary Rose Wilcox, the one person on the board who knows the most about Melendres, from participating in discussions of an appeal with her fellow supes.
Montgomery has threatened Wilcox with prosecution if she defies him, insisting that she has a conflict of interest (which she doesn't, unless you count her being a Latina and a thorn in Arpaio's backside).
But Montgomery and the sheriff, whom Montgomery obeys in almost all things, do not want any wise Latina chiming in on a Melendres appeal, even if Republicans like them have a 4-1 advantage over Wilcox, a Democrat, on the board.
As a result, do not expect common sense to affect Arpaio's childish insistence on a doomed appeal.
Back to the possible cost of dragging the MCSO kicking and screaming into the era of modern policing.
It may be unfair to compare the MCSO to the Los Angeles Police Department's 13-year consent decree, which cost that city a reported $40 million in its first year and $50 million every year thereafter. The LAPD is much bigger, with more than 10,000 cops, while the MCSO has about 800 sworn deputies.
But, then, the LAPD doesn't have a 3,000-member posse, either.
New Orleans may be somewhat more comparable. Its police department boasts about 1,400 police officers, and it currently is under the auspices of a consent decree that started in 2010.
According to press reports, New Orleans has estimated the cost of implementing the consent decree at $11 million a year. Interestingly, the Orleans Parish Prison also is under a federal consent decree, for which that city is on the hook. The OPP deal could cost anywhere from $10 million to $20 million a year.
Ultimately, no matter its length and cost, Snow's decree is necessary. I asked Arpaio's nemesis of many years, former County Attorney Rick Romley, what he thought of the ruling. He said he was not surprised by it.
"I thought it was clearly appropriate," he said. "During this entire thing, there were hidden e-mails and things like this, and Judge Snow said, 'Lookit, I'm not just going to take your word here. I'm going to have a verification mechanism in place.'"
Indeed, there will be a detailed record of all traffic stops by MCSO deputies, even when there is no citation or arrest. Ultimately, the MCSO will have to institute an "E-ticket" system, in which all those stopped are given a receipt showing the reason for the stop. And Snow, having endured the MCSO's destruction of evidence in Melendres and the agency's defiance of his first order from 2011, is instituting mechanisms to make certain of the accuracy of the data provided by the MCSO.
For instance, over the strident objections of Casey, Snow is requiring that all deputies call in the reason for a stop to MCSO dispatch before pulling over anybody.
Not only will that reinforce a deputy's honesty, it will assist with the Early Identification System that the MCSO must have in place, per Snow's dictate. The EIS will consist, in part, of a database that tracks the behavior of deputies -- and spots unconstitutional behavior before it occurs.
Perhaps four or five years hence, we'll see a difference in the MCSO. A 2009 Harvard study of the LAPD's then nine year-old consent decree found that incidents involving serious use of force by a police officer were down by 15 percent.
The study reported that 83 percent of Los Angeles residents rated the LAPD as doing a good or excellent job. And, according to the study's authors, "a majority of every racial and ethnic group" reported that "LAPD officers treat them, their friends, and [families] with respect."
But that was nine years after the LAPD entered into the consent decree with the U.S. Department of Justice. Also, beginning in 2002, the LAPD had a forward-thinking police chief, William Bratton, who embraced the consent decree.
And Sheriff Joe is no William Bratton.
"For me," Romley offered, "you're going to have to show a long period of sincere effort. Not like doing certain things like the booth at the [National Hispanic Women's Conference]. To expect [anybody] to get up and say, 'All's forgiven,' it doesn't work that way. That's the harm that comes from this. It takes years to recover."
Truly, Arpaio's attempts to "reach out" to the Latino community have been lame in the extreme: such as the booth the MCSO tried to score at the forum Romley mentioned, only to be shot down by the conference's organizers. Or Arpaio's recent stunt of placing white crosses in the desert near Gila Bend as a disingenuous homing device for lost migrants. Ironically, Casey objected to the ACLU's suggestion of a community-outreach program that would include a Spanish-speaking liaison officer, regular community meetings in each district, and a Community Advisory Board.
At the August 30 hearing, Casey told Snow that his client was opposed "to any community outreach in this order" and that it was "beyond the scope of this order."
With the MCSO hostile to the idea, Snow at first seemed to waver. But ACLU lawyer Dan Pochoda argued on behalf of an extensive community-outreach program, observing that it had been part of a federal judge's decree affecting the NYPD's discriminatory stop-and-frisk policy, as well as a number of school-desegregation cases.
"This is not an optional issue," Pochoda told the court, adding, "This is clearly part of [an] effective remedy, given the history of this particular sheriff -- the abusive and unconscionable practices intentionally directed at the Latino community [that] target[ed] people because of who they are and not because of what they did."
Ultimately, Pochoda won the day. In his order, Snow has an entire section on community outreach, ordering creation of a Community Advisory Board of six members, three chosen by the MCSO and three by the plaintiffs.
The board, Snow said, will "facilitate dialogue" between the MCSO and the Latino community and make recommendations that will "increase community trust" and "ensure that the provisions of this order are met."
This part of the order seems particularly fitting, since community activists such as Lydia Guzman, Sal Reza, and Carlos Garcia dogged the MCSO at every step, recording its actions (sometimes literally) and seeking out victims to serve as witnesses of MCSO abuse.
Unfortunately, Snow's order covers only so much. Beyond the purview of the lawsuit was the issue of Arpaio's worksite raids, which continue to crush mothers, fathers, and children whose only real "crime" is using a fictitious Social Security Number or someone else's identity to work.
With recent raids on a local family restaurant and a cleaning service, Arpaio has signaled that he will continue to persecute the undocumented through this asinine diversion of resources from legitimate law enforcement activities.
The worksite raids are part of the DOJ's lawsuit against the MCSO. Among other issues, including anti-Latino abuses in Arpaio's jails, the complaint takes aim at the MCSO's "unconstitutional and unlawful targeting of Latino workers."
But the DOJ's suit was filed in May 2012. It could take years for it to conclude.
Interestingly, the Latino community's recent win in Somos America v. Maricopa County Board of Supervisors -- with the federal court's ordering an end to the County Attorney's Office's practice of charging migrants with conspiracy to self-smuggle -- suggests that Arpaio's worksite raids also are illegal and will suffer the same fate.
Concocted by the dark mind of disbarred, disgraced ex-County Attorney Andrew Thomas, the policy of charging people with self-smuggling was just one way of holding the undocumented without bail under Prop 100 -- and coercing them into pleading guilty.
As I have documented at length, Thomas' other method of punishing the undocumented -- thereby making an end run around the federal government's supremacy in all things having to do with immigration -- was charging undocumented workers captured by the MCSO in worksite raids with identity theft and forgery.
The policy continues under current County Attorney, Montgomery. But it eventually must end.
Because the court in the self-smuggling case noted -- as has the U.S. Supreme Court -- that "unlawful presence alone is not a federal crime." But the county's self-smuggling policy, which Montgomery campaigned on in 2010, criminalized "mere unlawful presence." And since federal law trumps state law, particularly when it comes to immigration, the judge in the case sided with the plaintiffs, ordering that the policy cease.
Similarly, Montgomery and Arpaio have used ID-theft laws and statutes pertaining to forgery to hold the undocumented without bond, punish them for working, and get around federal immigration law, which regulates when and how aliens can work.
It is one of the last dominoes to fall in this pernicious game, a practice we must end by political means. And soon. Too many have suffered already. We cannot wait several more years for a court to do what we already know is right.
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