A New Federal Judge Enters the Arpaio Fray, Ordering a Trial in the Justice Department's Suit Against the MCSO | Valley Fever | Phoenix | Phoenix New Times | The Leading Independent News Source in Phoenix, Arizona

Stephen Lemons Column

A New Federal Judge Enters the Arpaio Fray, Ordering a Trial in the Justice Department's Suit Against the MCSO

Joe Arpaio’s lawyers recently bought the sheriff and his chief deputy, Jerry Sheridan, a little time by asking for federal Judge G. Murray Snow’s recusal in contempt proceedings against the pair and three of their current and former MCSO colleagues in the racial-profiling case Melendres v. Arpaio. Further contempt hearings...
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Joe Arpaio’s lawyers recently bought the sheriff and his chief deputy, Jerry Sheridan, a little time by asking for federal Judge G. Murray Snow’s recusal in contempt proceedings against the pair and three of their current and former MCSO colleagues in the racial-profiling case Melendres v. Arpaio.

Further contempt hearings are stayed until Snow makes a ruling. His decision is expected sometime after June 22, when defendants are scheduled to file their last brief on the matter.

But now Arpaio has another federal judge dogging him in a separate civil rights complaint brought by the U.S. Department of Justice: Judge Roslyn O. Silver, overseeing U.S. v. Maricopa County.

On Wednesday, June 10, Silver ordered a bench trial in U.S. v. Maricopa County to begin August 10, estimating that the trial will last 15 days.

The DOJ complaint, filed May 2012, mirrors many of the same issues concerning the MCSO’s discriminatory practices toward Latinos that are addressed in Melendres, in which the Sheriff’s Office was found guilty of widespread racial profiling in 2013 and ordered to undertake a laundry list of remedies.

However, the DOJ complaint is much broader than Melendres and covers Arpaio’s abuses of power, his retaliation against his critics, and ongoing discrimination against Spanish-speakers in county jails.

The DOJ alleges that the MCSO has violated both the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and Title VI of the Civil Rights Act of 1964, which, according to the DOJ’s website, “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.”

The DOJ complaint also alleges violations of the Fourth Amendment’s prohibition against unreasonable search and seizure, as well as violations of the First Amendment rights of Arpaio’s critics and opponents.
Additionally, the DOJ argues that the MCSO’s misdeeds fall under the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. § 14141), which states:

“It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”

As detailed in the DOJ lawsuit, the MCSO’s unconstitutional activities include the targeting of Latinos, the violation of the rights of Spanish-speakers, the illegal arrests of New Times’ founders in 2007, the wrongful arrests of Arpaio critics at a county Board of Supervisors’ meeting in 2008 for “clapping,” the illegal targeting and arrest of Phoenix civil rights activist Salvador Reza, the false charges brought by the MCSO against ex-Superior Court Judge Gary Donahoe, and the MCSO’s retaliation against former Supervisors Mary Rose Wilcox and Don Stapley.

Ironically, Arpaio’s investigation of Judge Snow’s wife — and his yearlong attempt to gin up a bogus conspiracy theory involving Snow, the DOJ, former U.S Attorney General Eric Holder, and others — could also be deemed part of the “pattern or practice” by Arpaio and his henchmen to deprive others of their rights under the color of law.

But it seems unlikely that the targeting of Snow will be part of any August trial before Silver, given that Silver already has cut off discovery in U.S. v. Maricopa County.

Silver’s courtroom is just down the hall from Snow’s in the Sandra Day O’Connor U.S. Courthouse in downtown Phoenix. If hearings in the Melendres contempt case resume in time, Arpaio and his chief deputy could stroll from one trial involving their misconduct to another.

Given Arpaio’s penchant for investigating judges and anyone else who gets in his way, you have to wonder whether the sheriff has attempted to implicate Silver in the MCSO’s Seattle investigation involving supposed computer guru Dennis Montgomery.

Silver’s name has yet to surface in details surrounding the Seattle snipe hunt. But would it surprise anyone if it does?

Of course not. Nothing is beyond the pale of Arpaio and his den of rogue cops.

One of many examples of the arrogance now on file with the court in U.S. v. Maricopa County is a portion of a deposition of Arpaio’s former chief deputy and enforcer David Hendershott.

Arpaio fired Hendershott in 2011 in the wake of an investigation by Pinal County Sheriff Paul Babeu into an alleged smorgasbord of misdeeds by Joe’s staff, as detailed in a 63-page memo by former Deputy Chief Frank Munnel.

Portions of the deposition were included as an exhibit to the DOJ’s motion for summary judgment in the case.

Earlier this year, both sides moved for summary judgment in U.S. v. Maricopa County.

As this column went to press, Judge Silver denied Arpaio’s requests for summary judgment, while granting the DOJ’s requests on issues related to the Melendres decision.

But in her recent order setting a date for trial, she wrote that her then-impending ruling on these competing motions “will not end this case,” making the August 10 trial necessary.

No doubt this will increase the pressure on the defense to settle with the DOJ before a trial can start.

But back to Hendershott’s deposition, which took place in March 2014.

In it, Hendershott was questioned about his numerous shenanigans while employed as Arpaio’s hatchet man, one of them involving Yavapai County Attorney Sheila Polk.

Polk incurred the wrath of Arpaio and Hendershott by refusing to go along with a prosecutorial witch hunt focused on supervisors Stapley and Wilcox, which had been farmed out to her by Arpaio’s flunky, now-disbarred former Maricopa County Attorney Andrew Thomas.

Ultimately, Polk returned the cases involving Stapley and Wilcox. She later penned an op-ed for the Arizona Republic lambasting the Arpaio-Thomas-Hendershott axis as a threat to the entire criminal justice system and bemoaning the “totalitarianism that is spreading before my eyes.”

In retaliation, Hendershott said he had written a complaint on Polk to the State Bar of Arizona, because she supposedly violated her oath of office by penning the op-ed.

Hendershott also stated that he called Polk’s chief deputy, twice leaving messages: the first expressing his dissatisfaction with Polk’s making negative comments about an ongoing case.

In the second message, Hendershott explained to a DOJ attorney, “I just wanted [Polk’s deputy] to know that I contacted the FBI about her conduct.”

The DOJ asserts in court documents that this apparent attempt to intimidate an elected county prosecutor was part of a series of retaliatory acts against people exercising their First Amendment right to be openly critical of Arpaio.

Indeed, Hendershott, often with Arpaio’s approval, “filed numerous bar and judicial complaints that ultimately were dismissed as meritless.”

And these bar and judicial complaints were part of a larger pattern of bogus “lawsuits, judicial, and bar complaints, arrests, and investigations, as well as arrests and investigations unsupported by probable cause or reasonable suspicion.”

What intrigues me is that Hendershott never expresses an iota of remorse at this stage of the game. Instead, he and the sheriff were right, and everyone else — judges, prosecutors, ordinary citizens — were wrong.

This despite Hendershott’s getting thrown under the proverbial bus by his jefe, Arpaio.

It’s an arrogance that’s shared by the guy who replaced Hendershott — Chief Deputy Sheridan — and by Arpaio.

Now, the improper investigations of Snow’s wife and a chimera of a conspiracy theory cooked up by Joe’s pal in Seattle are giving Joe’s lawyers fodder to try to throw Snow off the case.

There’s only one way to end this ceaseless rerun of Arpaio’s misconduct, his abuses of his power to deflect investigations and possible indictment.

Charge Arpaio and his goons for their crimes in office and place them in handcuffs.
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