U.S. District Court Judge Murray Snow issued a draft of his contempt order on Monday, focusing on extreme delays in misconduct investigations, staffing in the internal affairs bureau, and expanding the authority of the court-appointed monitor at the agency. Snow also proposes hefty fines against the Maricopa County Sheriff's Office if Penzone doesn't quickly fill vacancies in the bureau.
The 15-page draft order is the latest development in a lengthy legal battle that has enveloped Penzone but started under his predecessor, disgraced former Sheriff Joe Arpaio. In August, Snow announced plans to hold Penzone in contempt of court over issues in the case.
"Sheriff Penzone's non-compliance with the court's orders have been knowing and continuous," Snow wrote in his draft order.
The ongoing lawsuit and court oversight of the sheriff's office dates back to 2007, when a Mexican tourist, Manuel Ortega Melendres, filed a class-action lawsuit against the agency over racial profiling. The lawsuit resulted in a 2016 contempt finding against Arpaio and the appointment of an independent monitor to oversee the agency.
Melendres v. Arpaio has continued under Penzone's watch. According to Snow, Penzone has not managed to get the sheriff's office into compliance with court mandates. Snow's directives are intended to correct the deep-seated issues, including a pattern of racial profiling, that he found in MCSO during the Arpaio years.
Although the court orders that MCSO must comply with under Melendres contain a host of provisions — pertaining to everything from traffic stops to community engagement — Snow lately has focused on the agency's Professional Standards Bureau. The bureau investigates internal and external complaints about the conduct of sheriff's deputies, detention officers, and other employees.
A permanent injunction issued by Snow in 2016 requires the sheriff's office to complete all internal investigations within 85 days, unless there is a valid reason for an extension. In certain divisions, the requirement is 60 days. But it takes an average of 611 days to resolve misconduct investigations.
For major cases that involve law enforcement personnel, and not civilian employees of the agency, that average is far higher — more than 800 days, according to data the court has collected. In serious cases, such as ones involving use of force or accusations of domestic violence, it can take years for a complaint to be resolved and discipline to be handed down.
"The failure to complete investigations in a timely manner has become so extreme as to render investigations completely ineffectual," Snow wrote in his draft order. It was bad for employees, who might have to fight frivolous accusations for years — but it was also bad, he wrote, for people such as Melendres, who had suffered misconduct and found themselves without any avenue for accountability.
The Maricopa County Sheriff's Office faces a new contempt of court ruling in a 15-year-old lawsuit.
James Deak
Steep Fines Over Unfilled Positions
In the draft order, Snow mandates that Penzone fill seven vacant positions in the Professional Standards Bureau within 60 days. If not, the sheriff's office will be fined five times the annual cost to recruit, hire, train, and compensate each position every month a job remains unfilled, according to the order. The fines will be paid into a staffing fund to pay for hiring more personnel for the bureau or private investigators to help address the backlog in misconduct cases.Snow's proposed order also expands the authority of Robert Warshaw, the current court-appointed monitor watching over the sheriff's office, to address the backlog. Warshaw will be granted "immediate authority to oversee all of MCSO's complaint intake and routing," which would include "the power to audit and review decisions made with respect to individual cases and, if necessary, to change such designations," according to the order.
Warshaw, a "veteran cop-watcher," has been monitoring MCSO's efforts to comply with Snow's orders in Melendres since 2014. Snow's proposed authority over the Professional Standards Bureau would be a new role for Warshaw. A policing reform expert brought in by Snow to evaluate the bureau, Michael Gennaco, had suggested that a "constitutional policing authority" be appointed to take control of the bureau.
Snow wrote in the draft order that Warshaw was the best fit for the position given his experience with the sheriff's office and to avoid delays in the time it would take to establish a new authority who may be unfamiliar with the agency.
It's possible that some of these details will change when Snow files his final order, which will be sometime after October 17. In the next two weeks, the plaintiffs in the case, represented by the American Civil Liberties Union of Arizona, and the sheriff's office will be able to provide feedback on the order.
Christine Wee, a senior staff attorney with ACLU of Arizona, said the organization is reviewing the draft order. "Holding Sheriff Penzone in civil contempt is what is needed for MCSO to reach compliance with the court’s orders. Only then can MCSO’s egregious backlog be fixed and the rights of the plaintiff class be vindicated," Wee said in a statement to Phoenix New Times.
A spokesperson for the sheriff's office, Sgt. Monica Bretado, said the lawsuit addresses complex issues. "The process and data is far more complex than the information being leaked by other parties," Bretado wrote in an email to New Times. "The sheriff will provide statistics and context for those statistics in the near future."
